Central Administrative Tribunal - Jaipur
Shankar Lal Saini S/O Shri Bodu Ram Saini vs Union Of India Through Secretary To The ... on 20 September, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
ORIGINAL APPLICATION NO. 449/2010
DATE OF ORDER: 20.09.2011
CORAM
HONBLE MR. ANIL KUMAR, ADMINISTRATIVE MEMBER
Shankar Lal Saini S/o Shri Bodu Ram Saini, aged about 61 years, R/o Village & Post Dayra, Via Khandela, District Sikar and retired from the post of Sub Post Master, Khandela Post Office, Khandela (Sikar).
...Applicant
Mr. C.B. Sharma, counsel for applicant.
VERSUS
1. Union of India through Secretary to the Government of India, Department of Post, Ministry of Communications and Information Technology, Dak Bhawan, New Delhi 110001.
2. Director Postal Services, Rajasthan Western Region Jodhpur 342001.
3. Superintendent of Post Offices Sikar, Postal Division, Sikar 332001.
...Respondents
Mr. Mukesh Agarwal, counsel for respondents.
ORDER (ORAL)
The applicant has filed the present Original Application claiming for the following reliefs: -
8.(1). That the entire record relating to the case may kindly be called for from the respondents and after perusing the same Appellate order dated 20/07/2010 (Annexure-A/1) and punishment order dated 06/10/2009 (Annexure-A/2) with the charge memo dated 25/08/2009 (Annexure-A/7) be quashed and set aside with all consequential benefits.
(ii). That the respondents may be further directed to refund the amount so recovered with interest @ 12% per annum.
(iii). Any other order, direction or relief may be passed in favour of the applicant which may be deemed fit, just and proper under the facts and circumstances of the case.
(iv). That the costs of this application may be awarded.
2. The brief facts of the case as stated by the applicant are that the applicant in the year 2009 was holding the post of Sub Post Master Khandela Post Office. The Post Office Khandela is having an account in Bank of Baroda for cash transactions by way of depositing excess cash and withdrawal as per requirement. On 17.07.2009, due to heavy work and payments, applicant authorized one Shri Karim Khan regular Group D employee of the post office for withdrawal of Rs. 5,00,000/- from Bank of Baroda and also provided one Shri Damodar Prasad as escort for withdrawing amount from the bank. Shri Karim Khan withdrawn Rs. 5,00,000/- and attended post office, but handed over only Rs. 40,000/- and for remaining amount of Rs. 4,60,000/- he stated that the amount put on the table of the applicant and at the relevant time applicant was working in the computer room which is separately running and when the applicant came out from the room he directed Shri Karim Khan to handover cash and Shri Karim Khan failed to do so. Immediately, an FIR was lodged on 17.07.2009 (Annex. A/3) with the local police Khandela by Shri Karim Khan. As per the details of this FIR, Shri Karim Khan never handed over cash to the applicant.
3. The applicant was served a charge memo under Rule 16 of CCS (CCA) Rules, 1965 vide memo dated 25.08.2009 (Annex. A/7) alleging therein that the applicant failed to withdraw cash himself from bank and also violated provisions of conduct rules. The applicant submitted an effective representation dated 03.10.2009 (Annexure A/8) against the charge memo stating therein that the applicant is not at all at fault and Shri Karim Khan is fully responsible for cash as he never handed over the same to the applicant.
4. The applicant further submitted that the respondent no. 3 without considering facts and circumstances has imposed a punishment of recovery of Rs. 1,80,000/- vide memo dated 06.10.2009 (Annexure A/2) with the direction to recover the same from arrears of 6th Pay Commission and pay & allowances of the applicant. The applicant preferred an appeal dated NIL against the punishment of recovery before the respondent no. 2 stating therein that the applicant is not at all at any fault in connection with loss sustained to the department due to theft or Shri Karim Khan cheated the department, and Karism Khan also admitted this fact that he never handed over amount of Rs. 4,60,000/-. The respondent no. 2 has rejected the appeal submitted by the applicant vide memo dated 20.07.2010 (Annexure A/1) and uphold the punishment awarded by the respondent no. 3.
5. The applicant made challenge to the impugned charge-memo, punishment order and appellate order on the ground that the action of the respondents is arbitrary, illegal, and unjustified and also against the rules / regulations / instructions on the subject. It was not possible for the applicant to withdraw the money personally due to heavy work. Instructions of the respondent-department also provide to take assistance of subordinate staff for cash arrangement. The department sustained loss due to theft which is mis-happening and for which the applicant cannot be punished. He authorized Shri Karim Khan for withdrawal as per procedure, therefore, allegations against the applicant that loss took place due to negligence of the applicant is not sustainable. Therefore, issuance of the charge-memo is not at all justified and the same is liable to be set aside. The Disciplinary Authority did not consider the facts and circumstances of the present matter and awarded the punishment which is not commensurate with the gravity of charges because the applicant was never handed over cash by Shri Karim Khan, therefore, order passed by the Disciplinary Authority needs to be quashed. The Appellate Authority also did not consider the appeal and rejected the same without applying his mind and without meeting out all the points raised by the applicant. The Appellate Authority decided the appeal after the retirement of the applicant on 30.04.2010, therefore, the appellate order is liable to be quashed and set aside. No recovery can be made from the arrears of the 6th pay commission and the recovery can be made only from future due amount. Thus, on this ground alone, punishment order with the subsequent orders is not sustainable and the same are liable to be quashed and set aside.
6. The respondents have filed their reply. The respondents stated that the applicant while working as Sub Post Master, Khandela, he ordered to Shri Karim Khan, Group D employee, to fetch a sum of Rs. 5 Lakh only from Bank of Baroda, Khandela (Sikar) in place of himself or deputing some Postal Assistant for the same. Besides, Shri Karim Khan was also not provided proper escort. Shri Karim Khan brought Rs. 5 Lakh from Bank and placed on SPMs table i.e applicant. The applicant was not vigilant towards entrance of unknown person in the Post Office building. Hence, an amount to the tune of Rs. 4,60,000/- has not taken away by unknown persons and loss sustained to the department. Therefore, disciplinary action under Rule 16 of CCS (CCA) Rules 1965 were initiated against the applicant Shri Shankar Lal Saini, SPM Khandela, and he was served a charge-sheet on 25.08.2009. The applicant was given an opportunity to make such representation as he may wish to make against above said memo within 10 days of receipt of the memo, which was delivered to him on 26.08.2009. The applicant was given sufficient opportunity to inspect the documents, and accordingly, he attended Divisional Office Sikar on 02.10.2009 and inspected the relevant documents. The applicant submitted his defence on 03.10.2009, which was received in DO Sikar through SPM, Khandela on 05.10.2009. The disciplinary authority, after going through the defence submitted by the applicant and other relevant document very carefully, passed an order for recovery of Rs. 1,80,000/- (Rupees one lakh eighty thousand) being the part of loss sustained to the department by the negligence of the applicant. Against the order of the disciplinary authority dated 06.10.2009, the applicant filed appeal before the appellate authority. The appellate authority by considering all the grounds raised by the applicant in the appeal and other facts and evidence on record, vide reasoned and speaking order dated 20.07.2010 (Annex. A/1) rejected the appeal and upheld the order of disciplinary authority dated 06.10.2009. Thus, the action of the respondents in issuing the charge-sheet, order passed by the disciplinary authority and the order passed by the appellate authority are perfectly in order and according to the rules on the subject.
7. The respondents further stated that it is against the rules to entrust to group D employee to bring such much amount or cash from the bank, however, as and when cash was brought, it was primary duty of the applicant to take over money in his possession immediately and it should have been kept safely or disposed off for the purpose for which it was withdrawn. Thus, applicant is responsible for negligence which led to loss of Government to the tune of Rs. 4.60 Lac. The proper security and safety of the valuable amount of the Post Office cannot be compromised due to shortage of staff or heavy work. As per Rule 107 of Financial Hand Book Volume Part-1 (Annex. R/1) the employment of Group D Govt. servants to fetch or carry money should be discouraged. If it is absolutely necessary to employ such an official for the purpose, men of same length of service and proved trustworthiness should only be selected and in no case shall such an official be engaged when the amount handled is more than prescribed limit as fixed by the Department in Postal Manual Volume-VI Part-II Rule 9 (Annex. R/2). The plea of the applicant that he had provided one Shri Damodar Prasad as escort for withdrawing amount from the bank is not tenable, as he has not passed any order in this regard. It is also relevant to mention that Shri Damodar Prasad is GDSBPM of Saledipura Branch Post Office (Annex. R/4) and not the employee of Khandela Sub Post Office. In view of such heavy amount withdrawal, SPM or PA himself should have brought the cash, as PG-prescribed note below Rule 104 of the Postal Manual Volume VI and Part-III (Annex. R/5). Thus, the action of the applicant to order a Group D official to carry such heavy money from bank was not regular / correct. The recovery of Rs. 1,80,000/- is commensurate to gravity of offence and is justified. There is no bar to recover the loss of Govt. money from the arrears of the 6th Pay Commission, which was not paid to him at the time commission of occurrence. The applicant is not entitled for any relief and therefore this Original Application may be dismissed with costs.
8. I have heard the learned counsel appearing for the respective parties and carefully gone through the pleadings and the documents available on record.
9. The main contention of the applicant is that he did not go to bring the cash from the bank because there was shortage of staff on that day in the Sub Post Office and there was lot of work and if he had gone himself then the work would have suffered, therefore, in the interest of the Govt. work, he asked a Group D employee, Shri Karim Khan, to bring the cash and he was provided escort to bring the cash. Shri Karim Khan brought Rs. 5,00,000/- from the bank to the post office. Shri Karim Khan handed over only Rs. 40,000/- to the applicant and the remaining amount of Rs. 4.60 Lac kept in the drawer of the table of the applicant. Since the applicant was in the computer room, he did not receive Rs. 4.60 Lac. Shri Karim Khan never handed over Rs. 4.60 Lac to the applicant which was kept in the drawer of the table of the applicant. Since the applicant did not receive Rs. 4.60 from Karim Khan, therefore, he cannot be said to be liable for this loss. On earlier occasions also, Group D employee was entrusted to bring cash from the bank from time to time. Since the applicant is not personally responsible for the loss of Rs. 4.60 lac to the department as it was never handed over to him and an FIR has also been lodged by Shri Karim Khan to this effect, the charge memo issued to him is not in accordance with the law / rules. Therefore, the charge memo may be quashed. The disciplinary authority has also not considered the facts raised by the applicant in his representation, and, therefore, the order passed by the disciplinary authority is liable to be quashed and set aside. Similarly, the appellate authority has also not considered the points raised by the applicant in his appeal, and, therefore, the appellate order is also liable to be quashed.
10. On the other hand, the respondents have stated that it was the duty of the applicant to withdraw such huge amount or cash either himself or should have deputed a Postal Assistant to bring the cash. The applicant had made it practice not to go to bank to bring cash himself and he mostly deputed Group D employee to bring the cash from bank beyond prescribed limit, which is against the rules and procedure prescribed by the department of post. By merely stating that the amount of Rs. 4.60 lakh was not handed over to the applicant by Shri Karim Khan cannot be taken as a ground for his innocence as Sub Post Master it was the duty of the applicant to take possession of the money as soon as it was brought from the Bank by Shri Karim Khan. He should have kept a watch on the movement of the persons coming in and going out from the Sub Post Office. It was because of the negligence of the applicant, the Govt. has to suffer for the loss of Rs. 4.60 lakh and, therefore, the action of the respondents in issuing the charge-sheet is perfectly legal. The order passed by the disciplinary authority and the appellate authority are well reasoned and based on the facts of the case.
11. On the basis of the rival submissions made by the learned counsels for the respective parties, and after perusal of the pleadings and documents, I am of the opinion that there is no need to interfere with the action of the respondents in issuance of the charge memo dated 25.08.2009 (Annex. A/7), the punishment order dated 06.10.2009 (Annex. A/2) passed by the disciplinary authority and the order of the appellate authority dated 20.07.2010 (Annex. A/1) by which appellate authority confirmed the penalty imposed vide order dated 06.10.2009 and rejected the appeal filed by the applicant. It was the duty of the applicant that he should have himself gone to the bank to bring the cash since the amount involved was Rs. 5,00,000/-. A Group D employee should not have been entrusted with the task of brining cash of such a huge amount from the bank. The applicant also did not provide a proper escort to Shri Karim Khan. From the perusal of the documents it is clear that the applicant has violated the departmental instructions on the subject, when Shri Karim Khan brought money to the post office then it was the duty of the applicant to take over the possession of such huge amount immediately and he should have kept it in safe custody or should have utilized for the purpose for which it was withdrawn from the bank. In not doing so, the negligence of the applicant cannot be denied as Sub Post Master it was the duty of the applicant to ensure the safe custody of the entire amount, which was brought to the post office, therefore, looking into the gravity of the charges and the misconduct on the part of the applicant, the recovery of Rs. 1,80,000/- cannot be said to be not commensurate with the charges or negligence on the part of the applicant. The orders passed by the disciplinary authority and the appellate authority are according to the rules and the procedure on the subject. Therefore, this Original Application deserves to be dismissed being devoid of merit.
12. Consequently, the present Original Application stands dismissed being devoid of merit. There shall be no order as to costs.
(ANIL KUMAR) MEMBER (A) kumawat