Central Administrative Tribunal - Cuttack
Satyabadi Mohapatra vs D/O Post on 22 February, 2021
O.A. No. 645 of 2013 1 CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH OA No. 645 of 2013 Present: Hon'ble Mr. Swarup Kumar Mishra, Member (J) Hon'ble Mr. C. V. Sankar, Member (A)
1. Sri SatyabadiMohaptra, aged about 60 years, S/o Late Gopinath Mohapatra, Vill/Po: Biraramchandrapur, P.S: Sakhigopal, Dist: Puri, Ex-GDS BPM of BiraRamchandrapur B.O. in account with Sakhigopal S.O. under Puri head office, Puri.
.......Applicant.
VERSUS
1. Union of India, represented through itsSecretary-cum- Director General of Post, Ministry of Communication, Department of post, Dak Bhawan, Sashtrinagar, new Delhi - 110001.
2. The Chief Post Master General, Odisha Circle, Bhubaneswar, Khurda - 751001.
3. Director of Postal Services, Office of the CPMG, Odisha Circle, Bhubaneswar.
4. Sr. Superintendent of Post Offices, Puri Division, At/Po/Dist; Puri.
5. The Inspector of Post Offices, Jatni Sub-Division, Jatni, Khurda - 752050 ......Respondents.
O.A. No. 645 of 20132 For the applicant : Mr. D. K. Mohanty, Advocate. For the respondents: Mr. J. K. Nayak, Advocate.
Heard & reserved on :25.01.2021 Order on :22.02.2021
O R D E R
Per Mr. Swarup Kumar Mishra, Member (J)
The applicant by filing this OA, has prayed for the following reliefs under section 19 of the Administrative Tribunals Act, 1985:-
(i) To quash the charge sheet under Annexure A/2, IO report under A/5, order of punishment dt. 6.7.2012 under Annexure A/7 and order of Appellate Authority Annexure A/10 in view of order dt. 30.03.2010 of the Hon'ble CJM Puri under Annexure A/3.
(ii) To direct the respondents to reinstate the applicant into his service w.e.f. 22.03.2005 when the applicant was off duty and pay the applicant all his consequential service and financial benefit.
(iii) To pass any other order/order's as deem fit and proper in this case.
2. The brief of the case as inter alia averred by the applicant in the OA is that while the applicant was working in the respondents department was placed under "off duty" in contemplation of disciplinary proceeding by Respondent No. 5 vide order dated 22.03.2005 which was ratified by Senior Superintendent of Post offices vide order dated O.A. No. 645 of 2013 3 04.04.2005. The applicant submitted that without any charge sheet being served upon him, FIR was lodged on 07.03.2008 (Annexure A/1) by Respondent No. 5 which was converted to TR case No. 05/2008 before the Hon'ble Chief Judicial Magistrate, Puri. Thereafter vide memo dated 11.06.2009 (Annexure A/2) charge was issued and he was called to file his reply. After receipt of reply from the applicant the authority vide order dated 21.07.2009 appointed IO and the IO vide letter dated 26.08.2009 fixed the date of inquiry to 07.09.2009. The applicant submitted that he was exonerated/acquitted in the criminal case by Hon'ble Chief Judicial Magistrate, Puri vide order dated 30.03.2010 (Annexure A/3) and applicant communicated the same to respondents praying for dropping of the disciplinary proceeding as well as that till a decision is taken on the matter instruction may be issued to the IO not to proceed further in the inquiry. The applicant then approached this Tribunal with OA No.435/2009 but withdrew it on 04.09.2009 to file a better application. Thereafter he submitted a representation dated 30.02.2010 to the respondents to reinstate him but since no action was taken he approached this Tribunal in OA NO. 482/2010 which was disposed of vide order dated 14.07.2011 directing the respondents to complete the disciplinary O.A. No. 645 of 2013 4 proceeding within a period of 4 months. The applicant submitted that on 16.05.2012 witnesses No. 1 & 7 were dropped from the list of witnesses though they were vital witness and on the same day the IO concluded the oral inquiry and directed the applicant to submit written brief. The applicant as well as PO submitted their written brief and the IO submitted his report on 20.06.2012 to the disciplinary authority which was communicated to the applicant vide letter dated 27.06.2012 (Annexure A/5 series). The applicant then submitted his reply dated 06.07.2012 (Annexure A/6) after which the Disciplinary Authority vide order dated 13.08.2012 (Annexure A/7) imposed penalty of removal from service with immediate effect. The applicant then submitted appeal dated 21.08.2012 (Annexure A/8) to the appellate authority and when it was not considered the applicant filed OA No. 263/2013 before this Tribunal, which was disposed of on 03.05.2013 (Annexure A/9) with direction to the Appellate Authority to dispose of the appeal within 6 weeks. Thereafter the appellate authority upheld the order of punishment of removal passed by the disciplinary authority, while rejecting the appeal vide order dated 28.06.2013 (Annexure A/10). Hence the OA.
O.A. No. 645 of 20135
3. The respondents in their counter inter alia averred that the applicant while working as GDSBPM during the period from 17.02.2004 to 10.03.2005 committed fraud to the tune of Rs. 31540/- in several SB/RD accounts which came to the notice of Inspector of Posts, Jatni Sub-division and consequent upon investigation on complaint case in SB account No. 290678 it was found that the balance of the pass book differs with the ledger balance of the Sakhigopal Sub- Post Office. During the course of investigation it was revealed that the applicant has misappropriated in 16 numbers of SB and RD accounts to the tune of Rs. 31540/- for which he was placed under put off duty under Rule - 12 of GDS (Conduct & Employment) Rule 2001 now re-titled as GDS (Conduct & Engagement) Rule 2011 vide Inspector of Jatni Sub division memo dated 22.03.2005. The respondent submitted that competent authority ordered for payment of ex-gratia compensation of 25% of TRCA per month from the date of put off duty i.e. 22.03.2005 and then it was enhanced by 50% of the original amount w.e.f. 20.06.2005. The respondents submitted that after completion of verification of past work the case was taken up by the police on 07.03.2008 which was converted to TR Case No. 5/08 before the Hon'ble Chief Judicial Magistrate Puri. The respondents O.A. No. 645 of 2013 6 submitted that since criminal proceeding and departmental proceeding are different from each other, therefore the applicant was proceeded against under Rule 10 of GDS (Conduct & Employment) Rules 2001 vide memo dated 11.06.2009. The applicant then approached the Tribunal with OA No. 198/2009 which was disposed of vide order dated 13.04.2010 directing the respondents that the intervening period be decided by the respondents only after the conclusion of the disciplinary proceeding and to reinstate the applicant. The said order of the Tribunal was challenged by the respondents in Hon'ble High Court vide WP(C) 16074/2010. The respondents submitted that the applicant had filed another OA 482/2010 in this Tribunal which was disposed of vide order dated 14.07.2011 directing the respondents to complete the disciplinary proceeding instituted against the applicant within a period of four months. Hon'ble High Court of Odisha in the meantime disposed of WP (C) No. 16074/2010 vide order date 05.12.2011 (Annexure R/1) wherein the order dated 13.04.2010 of this Tribunal was set aside. The respondents submitted that the applicant being removed from service on finalization of disciplinary proceeding by Disciplinary Authority and the order was upheld by O.A. No. 645 of 2013 7 Appellate Authority and the applicant preferred the instant OA.
4. The respondents further submitted that the applicant while working as EDBPM during the period from 01.06.1999 to 27.07.1999 was earlier let off with minor penalty for retaining cash in excess of the authorized balance vide charge sheet dated 01.09.2000 (Annexure R/2). The applicant was earlier on 09.03.1988 also awarded with punishment of "severe warning" vide memo dated 16.03.1989 (Annexure R/3) for accepting an amount of Rs. 60/- each in RD accounts from the depositor for deposit in the pass book but did not account for the amount of deposit in the Government account on the date of deposit.
5. Learned counsel for the applicant has relied on some citations including the following citations:
a) Hon'ble Apex Court in G. M. Tank vrs. State of Gujarat &anr.
b) Hon'ble High Court of Orissa in W.P. (C) no.
1130/2008 vide order dated 09.09.2008.
c) Hon'ble Apex Court in The State of Karnataka &anr vrs. N. Gangaraj in Civil Appeal No. 8071 of 2014.
d) State of Madhya Pradeshvrs Bani Singh & another (AIR 1990 SC 1308) O.A. No. 645 of 2013 8
e) State of Andhra Pradesh vrs. N. Radhaishan (AIR 1998 SC 1833)
f) Madan Mohan Mohanty vs. State of Orissa & others (OA No. 171/2003 disposed of on 18.01.2005)
g) Chairman & Managing Director United Commercial Bank &ors vs. P. C. Kakkar 2003 (4) SCC 364.
h) Union of India and others V. Prakash Kumar Tandon (2009) 1 SCC (L&S) 394.
i) Roop Singh Negi v Punjab National Bank and others (2009) 1 SCC (l&s) 398
j) Bhartesh C. Jain and others v Shoaib Ullah & another (2008) 1 SCC (L&S) 616.
k) Vishnu Dev Sharma v State of Uttar Pradesh and others (2008) 1 SCC (L&S) 596
6. The appeal dated 21.08.2012 filed by the applicant is extracted below:
"I beg to lay the following few lines for kind consideration and favourable orders.
1. That I Sri Satyabadi Mohapatra G.D.S, BPM, BiraRamachandrapur B.O. (Under off Duty) in a/wSakhigopal S.O. under Puri H.O. has been charge sheeted in four ((4) article of charges) vide Disciplinary Proceeding No. F/4-2/2007-2008. Dated 11.06.2009 under Rule 10 of GDS (conduct & employment) Rules 2001 by the Sr. Superintendent of post offices Puri Division Puri (copy enclosed).
2. That inquiry was conducted by Sri A.K. Nayak ASP I/C, Puri Sub Division Puri in different dates and the enquiring officer has submitted the enquiry report on 20.06.2012 (copy enclosed). The said enquiry report has been served to me on dt. 27.06.201 and has been directed me to submit written representation within ten O.A. No. 645 of 2013 9 days. Being received the enquiry report I have submitted my representation on show cause notice 06.07.2012 before the Sr. Superintendent of Post offices, Puri (copy enclosed).
3. That after the receipt of the representation, the Disciplinary authority Sr. Superintendent of Post Offices, Puri Division, Puri has awarded the penalty of removal from services with immediate effect to me. (copy enclosed).
4. That it is needless to mention here that earlier the department has filed case bearing T.R. No. 5/08 (arising out of Satyabadi Police Station case no. 40/08) before the Hon'ble Chief Judicial Magistrate, Puri for having committed criminal mis-appropriation to the tune of Rs. 30,590=00 from the S.B & R.B. account of 15 person.
The detailed are given below Rs. 300.00 from S.B. account no. 289579 of Damodar Nayak (page No. 3 (i) orders of Hon'ble C.J.M., Puri (copy enclosed) total amounting to Rs. 30,590=00. All the amount has already been credited in Postal Deptt. Account in different dates which is admitted by the Postal Inspector, Jatni Sub-division before the Hon'ble C.J.M. at the time of hearing.
5. The Hon'ble C.J.M. Puri has been acquitted me after hearing of the case from every angle vide order/judgment dated 30.3.2010 (copy enclosed). No appeal has been filed till date. Rather the sr. Superintendent Puri Division, Puri has been charge sheeted in only four charges on me on the same self ground/facts which is contrarly to law. The charge memo in disciplinary proceeding was served on the applicant after four years from the put off duty dt. 22.03.2005 which is completely barred by limitation. (copy enclosed)
6. That I have been submitted the defence statement before the inquiring officer on 02.05.2012 during the time on enquiry (copy enclosed) narrating all the factual points. But the inquiring officer has not taken into consideration of any defence statement and completed the enquiry which also violates the natural justice.
7. That in this connection I will place here with the copies of Judgment 1976 (J) SCRP 585 (Harinarayan Dubey versus State of Madhya Pradesh & others) where as Hon'ble Court has held tht no person/employees shall be charge sheeted in same self ground/facts by the departmental authorities. But the Sr. Superintendent, Puri Division, Puri is silent on the above judgment. The same also violates the natural justice.
That the above facts needs to be examined and justice may kindly be provided to me.
PRAYER O.A. No. 645 of 2013 10 I therefore prayed before your lordship with folded hands that the charges may kindly be exonerated and the penalty imposed on me by the Sr. Superintendent, Puri Division, Puri may kindly be quashed and stay the present order of SSPO's Puri. I may kindly be reinstated in the service at an early date, for which act of your kindness I shall be obliged"
7. The relevant portion of the speaking order of the appellate authority dated 2806.2013 is extracted below:
"I have carefully gone through the appeal, brief history of the case, parawise comments, memo of charge sheet, defence representation, IO's report and the punishment order and relevant records connected to this case.
The charges against the appellant are that he did not take into Govt account the money received from the 4 no of depositors (2 SB & 2 RD accounts bearing No. 289718,28964, 14133 & 16700) standing open at Biraramachandrapur PO on the same day or on subsequent date although he received the same from different depositors on different date, made necessary entries in the concerned pass books impressing the date stamp of BO. The appellant denies to have received the money from the depositors and argues that the charges brought against him have not been proved.
From the report of enquiry dated 20.06.12, I find that although the appellant had received the money from the depositors Sri Biswambar Mishra, Sri DamodarBhoi, Smt Mira Dash & Ms. SasmitaPati on different dates have not credited the amount so received into Govt account by not entering the same in BO SB/RD Journal, BO account book which is proved on record/documentary evidences violating the provisions of Sub Rule (3) of Rule 131 of Rules for Bos. Although the appellant denies to have made the entries in the Pass Books, he can not escape from the fact that date stamp impressions of the BO have been made against each entry of the deposited amount and the depositions of the depositors to this effect.
More over the written statement of the appellant dated 18.08.05 in respect of A/c No. 289718, the written statement of the appellant dated 18.07.05 in respect of A/c No. 289645, the written statement of the appellant dated 04.10.2007 in respect of RD A/c No. 14133 and statement of the appellant dated 09.08.07 in respect of A/c No. 16700 clearly proves the involvement of the appellant in these misappropriation cases of SB & RD deposits of the depositors.
Misappropriation of the money of the depositors in POSB is a serious offence as it creates a bad image of the department in the eye of the general public. I fully agree with the report of the IO that the appellant being a very senior GDSBPM having rendered more than 27 O.A. No. 645 of 2013 11 years of service has not given the statements cited above as per the dictation o the IPO and under compulsion.
Further, the argument of the appellant that departmental proceedings can not be initiated against him in view of the acquittal by the Court of Law by the CJM Puri vide judgment dated 31.03.10 in TR case No. 05/08 on the same set of charges is not acceptable as the OA No. 482/2010 filed by the appellant in this respect has since been dismissed by the CAT Cuttack Bench Cuttack on 14.07.2011.
Thus as per the discussions made above, the charges brought against the appellant are fully proved beyond all reasonable doubt and proved on record. I have come to the conclusion that the appellant has failed to discharge his duties efficiently and diligently as required by him. He is not a trust worthy person to remain in service and hence I do not find any reason to interfere on behalf of the appellant on the orders of the disciplinary authority.
I, Shri P. K. Singh, Director Postal Services (HQ) Bhubaneswar therefore, uphold the order of punishment passed by the disciplinary authority, and reject the appeal."
8. It was inter alia submitted by learned counsel for the applicant that there has been delay of about four years in lodging the FIR. It was further submitted that the accused has been acquitted by the competent trial court for alleged commission of offence under section
409. It is seen from the judgment delivered by trial court that there was no sanction for prosecution of accused. It was also found by the trial court that the offence under section 409 of the IPC has not been proved in that case. But in the present case, there is acceptable materials on record that the applicant has already deposited amount of Rs. 30,590/- on different dates. Thus, the said material on record show that there was temporary misappropriation by the applicant. Since there was no charge of temporary misappropriation in the criminal case in question, O.A. No. 645 of 2013 12 therefore the trial court had acquitted the applicant accused for the alleged offence under section 409 of the IPC besides considering ground that there was no sanction for prosecution of accused in that criminal case. Therefore, it cannot be said that the accused has been honorably acquitted on merit by the trial court in the criminal case in question. Hence the said acquittal order cannot be a bar for the applicant to face the departmental proceeding in question, as in criminal case the standard of proof required is beyond reasonable doubt. But on the other hand the standard of proof required in the departmental proceeding in question is in standard of pre-ponderance of probability. That apart in the departmental proceeding the applicant also faced the charge that there was misconduct on his part in capacity as govt servant. The said aspect was not there in criminal case in question. In the decision, South Bengal State Transport Corpn. v. Swapan Kumar Mitra, reported in JT 2006 (2) SC 307, the Hon'ble Apex Court has held that in a criminal case, the charges have to be proved beyond reasonable doubt, while in departmental proceedings, the standard of proof required is mere preponderance of probabilities and therefore, in spite of acquittal in the criminal proceeding, an order of dismissal O.A. No. 645 of 2013 13 emanating from departmental proceeding can be sustainable. As per this decision, it is clear that mere acquittal in a criminal proceeding would not " ipso facto", nullify the departmental proceeding.In the decision, G.M.Tank v. State of Gujarat, reported in (2006) 5 SCC 446, the Hon'ble Apex Court has held, with regard to the sustainability of the departmental enquiry and the dismissal of the delinquent official thereon. When the departmental proceeding and the criminal case are based on the same set of facts and as there was no evidence against the employee to hold him guilty, and the criminal court recorded an Honourable acquittal, a contrary finding in the departmental proceeding, resulting in dismissal of the delinquent official from service was held unjust, unfair and oppressive. The decision would not be applicable, if there was no Honourable acquittal. In the circumstances taking into consideration the position of law and as per the citation as mentioned above, this Tribunal finds that mere acquittal in criminal case in question, in this peculiar circumstances, will not be a bar for the applicant to be imposed with any punishment in question, when there were acceptable evidence and material to prove the allegation made against the applicant in the departmental proceeding. O.A. No. 645 of 2013 14
9. The delay of filing FIR is of no consequence in this case when the fact regarding temporary misappropriation could not have been detected immediately after commission of said misconduct in his capacity as GDSBPM during the period from 17.02.2004 to 10.03.2005. It is not the case of the applicant that there has been intentional undue delay by the department to proceed against him, in the departmental proceeding or any attempt was taken with ulterior motive to harass the applicant by not initiating the disciplinary proceeding on any earlier date/period, for the allegation as made against him in the departmental proceeding.
10. It was submitted by learned counsel for the applicant that none of the depositors have complained against the applicant and none has lodged complaint or FIR before the respondents authorities or before the police. The said aspect cannot, assume much importance, in view of the fact that the depositors might not be aware that attempt has been made by the applicant to misappropriate their money which they had deposited, after reposing faith on the officials of the department in question including the applicant.
11. It was alleged against the applicant that he had not credited the amount in question, although the said amount was deposited by the concerned depositor as O.A. No. 645 of 2013 15 seen from Annexure A/7 dated 13.08.2012.It was submitted by learned counsel for the respondents that the applicant was earlier charge sheeted for retaining cash in excess of the authorized balance during the period from 01.06.1999to 24.07.1999 and was let off with minor penalty to mend himself in future vide memo at Annexure R/2 and was awarded with punishment of "severe warning" vide memo dated 16.03.1989 (Annexure R/3) for accepting amount of Rs. 60/- from the depositor for deposit in the pass book but did not account for the amount of deposit in the Government Account on the date of deposit.
12. With regard to the punishment learned counsel for the applicant had submitted that the after faithfully serving the department from the year 1977 to 2005 the applicant has retired after attaining the age of superannuation in the year 2005 and he is only getting ex-gratia payment, therefore taking into consideration the financial hardship of the applicant, lenient view should be taken in his favour, as the punishment imposed against him is harsh and shocks the conscience. We are unable to accept the said submission of the applicant, as the applicant in his capacity as GDS BPM was not expected to betray the trust and confidence reposed by the depositors and respondents department. The very fact that the O.A. No. 645 of 2013 16 applicant has betrayed the said trust by the depositors as proved in this case, goes to show that the said conduct of the applicant had the effect of tarnishing the overall image of the department in the eye of general public and in the eye of depositors in particular. Therefore, no leniency should be taken in such type of instances. If such type of mis-conduct of the officials and staffs of the department is not discouraged and not dealt with heavy hand, then in the long run the image of respondent department will get tarnished and the faith and confidence of the people on this department will be seriously eroded.
13. The citations relied by learned counsel for the applicant are not applicable to the facts and circumstances of this case. It is seen that it is not a case of no evidence. On the other hand the findings as arrived at by the inquiring officer and confirmed by the appellate authority are based on record. Re- assessment of evidence is not permissible at this stage by the Tribunal. The applicant has been given due opportunity in the departmental proceeding in question, to defend himself at all stages. No illegality or irregularity has been proved, to the satisfaction of this Tribunal in order to interfere in this case. No prejudice has been caused to the applicant. This Tribunal is satisfied there is no illegality in decision O.A. No. 645 of 2013 17 making process by the respondents in the departmental proceeding in question. Accordingly this Tribunal finds that this is not a fit case which calls for any interference by this Tribunal.
14. Accordingly, the OA is dismissed but in the circumstances without any order to cost.
(C. V. SANKAR) (SWARUP KUMAR MISHRA) MEMBER (A) MEMBER (J) (csk)