Central Administrative Tribunal - Cuttack
Sardar Pritpal Singh vs D/O Post on 16 June, 2021
OA No. 807/2019 1 CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH OA No. 807 of 2019 Present: Hon'ble Mr. Swarup Kumar Mishra, Member (J) Hon'ble Mr. T. Jacob, Member (A)
1. Sardar Pritpal Singh, aged about 40 years, (Gr. C), son of Shri Kartar Singh, presently working as Sub-
Postmaster, Kesinga, Jagannath Pada NDT SO, At./PO. Kesinga, Dist Kalahandi.
.......Applicant.
VERSUS
1. Union of India, represented through its Director General of Post, Government of India, Dak Bhawan, New Delhi 110011.
2. Director of Postal Services, Office of the Postmaster General, Berhampur Region, Berhampur-760001.
3. Sr. Supt. Of Post Offices, Kalahandi Division, Bhawanipatna - 766001 ......Respondents.
For the applicant : Mr. S. K. Ojha, Advocate.
For the respondents: Ms. P. R. J. Dash, Advocate OA No. 807/2019 2 Heard & reserved on :16.03.2021 Order on :16.06.2021 O R D E R Per Mr. Swarup Kumar Mishra, Member (J) The applicant by filing this OA has challenged the order of punishment imposed on him as a subsidiary offender for supply of 50 nos of unused passbooks which led to misappropriation to the tune of Rs. 7,27,600/-. The applicant under section 19 of the Administrative Tribunals Act, 1985, has prayed for the following reliefs:-
(i) To admit the OA;
(ii) To quash the Charge Memo No. F4-1/2015-16 Ch-
II, dated 01.08.2018 (Annex.A/1).
(iii) To quash the order of punishment issued under Memo No. F4-1/2015-16 Ch-II dated 18.07.2019 (Annex.A/4) and Appellate Authority order dated 22.11.2019 (Annex. A/7) holding the same are illegal and outcome of non-application of mind;
(iv) To direct the Respondents to extend the consequential benefits and refund the recovered amount with interest;
(v) To pass any other order/orders as deem fit and proper for the ends of justice.
1. The respondents in their counter inter alia averred that in terms of Rule 6 of Post Office Savings Manual, Vol - I (Annexure R/1), a Head Post Office can supply unused new passbooks to sub post offices working under the accounts OA No. 807/2019 3 jurisdiction of the HO. But the applicant supplied 50 numbers of unused new pass book to another Post Office namely Bhawanipatna Stadium Post Office which resulted in the then sub postmaster committed fraud to the tune of Rs. 7,27,600/- and thus for his contributory lapses and negligence the applicant was identified as a subsidiary offender along with several other officials for his lapses by the Divisional Level and Circle Level Investigations conducted into the fraud case. Thereafter the applicant was proceeded against under Rule 16 of CCS (CC&A) Rules 1965 by the Respondent No. 3. The respondents further submitted that the sub post master Bhawanipatna sub post office cleverly obtained unused blank passbook from the applicant and committed massive fraud which could have been averted had the applicant strictly followed the instructions contained in rule 6 of POSB Manual Vol 1. The respondents submitted Annexure R/2 supplied copy of the acknowledgment of bland and unused passbooks. The respondents submitted that procedures under Rule 16 (1A) are to be followed in the case if it is proposed to withhold increment of pay which is likely to affect adversely the amount of pension payable to the Govt. servant or to withhold increments of pay for a period exceeding three years or withhold increments with cumulative effect. But in the case of the applicant he has been awarded with punishment of censure along with recovery of Rs. 1,75,000/- hence the plea of the applicant is not acceptable. The respondents submitted that after following due OA No. 807/2019 4 procedure disciplinary authority imposed the punishment and which was also confirmed by the appellate authority who considered all relevant aspect of the case and applied his mind.
2. The applicant has filed rejoinder and the respondents have filed reply to rejoinder.
3. The statement of imputation of misconduct or misbehaviour in the charge sheet issued to the applicant is extracted below:
"While working as Sub Postmaster Narla Road SO during the period from 19.11.2012 to 23.05.2017, Sri Sardar Pritpal Singh, Sub Postmaster, Kesinga JM Pada, SO supplied 50 (Fifty) number of unused blank passbooks to the Sub Postmaster Bhawanipatna Stadium SO contravening the Rule - 6 of POSB Manual Vol-I. Sri Aditya Kumar Majhi the then SPM Bhawanipatna Stadium SO acknowledged the supplied passbooks on dated 27.05.2015 and got those blank passbooks issued to the depositors mentioning fictious/duplicate account number on each without incorporating the deposits to Post Office Account and thereby committing a massive fraud in respect of each of the following accounts -
Sl. Account No. Name of the Date of Date of Amount (in
No. depositor opening of commitment of Rs.)
(Sri/Ms) account/ Fraud
issue of
passbooks
1 MIS - Satyanarayan 30.11.2015 30.11.2015 45,000
1825473192 Panda
2 MIS - Ganesh 07.09.2015 07.09.2015 45,000
3082729832 Kumar
Choudhury
3 TD Accoutns K. Surya Rao 19.11.2015 19.11.2015 4,00,000
(without account
number)
4 TD-113792 Bhaskar Das 16.10.2015 16.10.2015 60,000
5 TD - 3083936532 Sachikanta 10.09.2015 10.09.2015 72,000
Mishra
6 SSA - Dristi Dash 16.07.2015 21.07.2015 1,000
3066309230 D/o Dilip
Kumar Dash
7 SSA - Aksnkha Naik 15.07.2015 15.07.2015 1,000
30965670911 D/o Akshya
Naik
8 SSA - Charika 15.07.2015 15.07.2015 1,000
3065606613 Gupta D/o
OA No. 807/2019
5
Santosh
Kumar Gupta
9 SSA -3081551034 Pratikshya 02.09.2015 02.09.2015 1,000
Patel D/o
Dinesh Kumar
Patel
10 SB-3081553311 S. Lata Achary 04.09.2015 04.09.2015 600
11 RD-3079512023 S Lata Achary 25.08.2015 26.09.2015 500
12 RD-3059582206 Prakash 30.06.2015 30.06.2015 2,000
Mahala
13 RD-3060797767 Bhawanirani 30.06.2015 30.06.2015 2,000
Pradhan
14 RD-3058830049 Rina Pradhan 30.06.2015 30.06.2015 2,000
15 SSA-3096574171 Jasmita Majhi 20.10.2015 13.11.2015 500
D/o
Suryakanti
Majhi
16 1yr TD- Manoranjan 15.07.2015 15.07.2015 45,000
3066290729 Barik
17 3yr TD- Amarjeet 15.07.2015 15.07.2015 45,000
3066278865 Kaur &
Manmohan
Singh
18 SB-3102938912 Saibhab 06.11.2015 06.11.2015 4,000
Ranjan Sahu
Total 7,27,600
Therefore it is alleged that the said official, Sri Sardar Pritpal Singh by his above action facilitated commitment of above said cases of misappropriation by Sri A. K. Majhi and thereby failed to maintain devotion to duty as required of him under Rule 3 (I) (II) & acted in a manner which is contrary to rules & established practices and not desirable under Rule-3(1) (xviii) of CCS (Conduct) Rules 1964."
4. The defence statement of the applicant vide Annexure A/3 is extracted below:
"I put forth the following few lines of explanation against the charge labelled against me under Rule 16 of CCS (CC&A) Rules 1965, when I was working as SPM Narla Road SO during the period from 19.11.2012 to 23.05.2017.
That, on repeated request by Sri Aditya Majhi Sub Postmaster BPT Stadium S.O. to supply the unused blank new passbooks over phone calls, stating that there was no pass book stock at Bhawanipatna Head Post Office, it urged me and in exigency of service obliged me to provide fifty number of unused blank new passbook to Bhawanipatna H.O. for supplying to BPT Stadium NDTSO through my Account bag dtd - 04/06/2014 duly entering the invoice in S.O. Daily Account dtd-04/06/2014.
Further he mentioned that he had opened around forty number of new accounts and on the other hand he had no new unused blank OA No. 807/2019 6 passbooks to issue to respective new account holders. Therefore keeping in view of above mentioned and to promote the business of Sri Majhi's office, so that he may not face any hindrances to provide the service to the public in a smooth manner I provided him the fifty number of new unused blank passbooks through Bhawanipatna H.O. Hence there is no question of deviating the rule. And those passbooks might have been issued in between June-2014 to July 2014. But the defrauded accounts mentioned in the charge sheet have been opened in between 30.06.2015 to 30.11.2015. I supplied the fifty number of new unused blank passbooks with two copies of Invoice No-01 dtd 04.06.2014 duly signed by me and date stamped. As I did not receive the acknowledged copy of invoice No. 011 dtd 04.06.2014 for my office record I visited Sri. Majhi's office to procure the invoice copy of mine. But Sri. Majhi was unable to produce me the invoice the invoice copy which I had sent it along with the passbooks. It was list by him. He acknowledged the received those fifty numbers of passbooks which he received on 04.06.2014 on 27.05.2015.
Further I would like to bring to your kind notice that my office was inspected twice by the then Inspector of Post Sri Panchratna Nayak and the then SPOs Kalahandi Division Sri. Ramakanta Mishra on dtd 26.11.2015. At that time of inspection I brought the matter into the notice of each inspecting official mentioned above. They verified the passbook stock register without any bad remarks.
Therefore I request your good self to be kind enough to let me off this time for my mistake due to ignorance of departmental rule mentioned above for which act of kindness I will be grateful to you. Thank You."
5. The relevant portion of the order of punishment dated 18th July 2019 issued by Superintendent of Post Offices, Kalahandi Division is extracted below for reference:
" XXXXXXX Sri Singh received the memo on dated 03.08.2018 and submitted his representation dated 07.08.2018 requesting permission for perusal of documents in connection with the article of charge levelled against him. His request for perusal of documents was acceded to and he was permitted to peruse relevant documents on 14.08.2018. The said Sri Pritpal Singh after perusal submitted his defence dated 18.08.2018 which was received at this office on 20.08.2018.OA No. 807/2019 7
The said Sri Singh in his defence has stated that unused blank passbooks were supplied to the SPM Bhawanipatna Stadium SO on receipt of several requests from the then SPM Sri Aditya Kumar Majhi telephonically. Further it has been stated by the said sri Singh that in order to promote business of Bhawanipatna Stadium SO and to avoid in hindrance to Sri majhi he supplied the passbooks through Account Bag dated 04.06.2014. It was also stated that Passbooks were supplied to Bhawanipatna Stadium SO vide his invoice No-01 dated 04.06.2014. Since the acknowledgment of the passbooks were not returned back by the addressee office he attended the Bhawanipatna Stadium SO and collected the acknowledgment dated 27.05.2015 which was reportedly received by the SPM on 04.06.2014. It has further been submitted that after supply of Blank passbooks, Narla road SO has been inspected by Sri Pancharatna Nayak, the then IP Kesinga Sub Division and by Sri Ramakanta Mishra, the then SPOs on 26.11.2015.
I have gone through the defence representation of the charged official and all other connected documents in the instant case. the averment of the official that blank passbooks were supplied through Account Bag is not at all convincing. The official should clearly keep in his mind that an account bag is closed between a SO and its HO and vice vers. Thus any article mean for a office other than HO should find no place in the account bag. Thus it is a case of an after-thought with an intention to dilute to gravityof the article of charge. As regards supply of blank passbooks on the basis of a phonic request of another SPM is simply ridicules. Further Sri Singh should not try to find fault of other in order to devise an escape route for him. Sri Singh has committed very serious irregularities and which immensely helped in inflicting a huge pecuniary loss to the Government.
In view of discussions made in the foregoing paragraphs it is established that Sri Sarda Pritpal Singh is guilty of charges levelled against him. The said Sri singh deserves stringent action for his contributory negligence. However considering the past service of Sri Singh, teh degree of contributory negligence & and a number of other officials with contributory lapses, I, Sri Padmanava Das, Superintendent of Post Offices, Kalahandi Division take a lenient view while exercising the powers conferred upon me under Rule - 11 of CCS (CC&A) Rules 1965 & award Sri Sardar Pritpal Singh with the punishment of "Censure" with further direction of immediate recovery of Rs. 1,75,000.00 (Rupees one lakh seventy five thousand only) from his pay in 20 (twenty) equal instalments to meet the ends of justice. Further, I hope that Sri Singh hence-forth, during long OA No. 807/2019 8 service period ahead, will endeavour his best to avoid recurrence of such lapses by scrupulously following departmental rules & regulations."
6. The relevant portion of the appeal dated 29.08.2019 is extracted below for reference:
"XXXXXXX That the humble appellant begs to put forth the following facts for consideration.
That the charge sheet is silent on the date on which the pass books were supplied. Speaks on the acknowledgement of receipt of the passbooks as one 27.05.2015.
That the charge sheet speaks of fraud by Sri Aditya Ku. Majhi, S.P.M. Bhawanipatna Stadium NDTSO for the period for 30.06.2015 to 30.11.2015 to the tune of Rs. 7,27,600/- (Rupees seven lakh twenty seven thousand six hundred) only.
That as per the stock book of Narla Road S.O. blank pass books of 50 (fifty) in number were supplied vide invoice No. 1 dtd. 04.06.2014 to Bhawanipatna Stadium NDTSO. The humble appellant has clearly mentioned in his defence representation that those were supplied through H.O. The disciplinary authority i.e the Superintendent of Post Offices, Kalahandi Division while discussing the defence representation has stated it as "after thought" The disciplinary authority was empowered to verify the fact. Actually, prior to issue of the charge sheet he should have called for the views of the humble appellant on supply of pass book. Even if it was not done, he should have verified the fact on receipt of the defence representation.
The humble appellant submitted his defence representation on 18.08.2018. The disciplinary authority finalized the case on 18.07.2019. He has got near about one year from Aug-18 to July -
19. The disciplinary authority was at liberty to verify the daily account dtd. 04.06.2014 of Narla Road S.O. and the S.O. slip prepared by Bhawanipatna HO for Bhawanipatna NDTSO. Defintely the S.P.M. Bhawanipatna Stadium NDTS has received the pass books by 07.06.2016. The humble appellant leaves the fact to the decision of the Honourble Director of Postal Services as to how far the disciplinary authority is justified to label it "after thought".OA No. 807/2019 9
That the humble appellant has cited that Narla Road SO was inspected/visited by then then Inspector Posts in the month of December-2014 and by the Superintendent of Post Offices, Kalahandi Division on 26.11.2015. Their signatures are clearly available on the stock register. Both of them are satisfied on the supply. To this the disciplinary authority in the Memo No. F4- th 1/2015-16 Ch-II, dated at Bhawanipatna the 18 July 2019 has cited as "finding fault with others". The humble appellant prays to decide how far the disciplinary authority is justified on such remarks.
That the disciplinary authority while discussing the supply of pass books through account bag has cited that it should not contain any other item not meant for HO. The stand of the disciplinary authority is unjustified. In case it is justified, HO should have returned the invoice to the parent office i.e. Narla Road SO. But HO has sent the invoice to the destination i.e. Bhawanipatna Stadium NDTSO. Moreover when there is a procedure to send without incurring expenditure to send the invoice by Regd/Insured Post is irregular.
That the disciplinary authority has taken wrong stand only with an aim to punish the humble appellant which are clear from the following.
i) That the disciplinary authority has cited to have violated the provison of Rule - 6 of POSB Manual Vol - I. This Rule deals with supply of pass book by H.O. to S.O. The disciplinary authority should have cited the provision of supply from S.O. TO S.O.
ii) In the charge sheet intentionally the disciplinary authority has avoided the date on which Bhawanipatna Stadium NDT SO received the pass books. But he has cited the date of acknowledgement only. The invoice was sent on 04.06.2014. Definitely it would have reached by 07.06.2014. The date of acknowledgment i.e. 27.05.2015 is mentioned. In the defence representation, the humble appellant has clearly mentioned that since the SPM Bhawnipatna Stadium NDTSO delayed in acknowledgment, the humble appellant personally visited Bhawanipatna Stadium NDTSO and obtained the acknowledgment. The disciplinary authority is silent on this.
iii) That the pass books sent from Narla Road SO were received at Bhawanipatna Stadium NDTSO on the week of June OA No. 807/2019 10 2014. Definitely it would have been exhausted very soon. The disciplinary authority is expected to be well aware of it. But intentionally he has brought the humble appellant to task. It will be clear from the following.
That Bhawanipatna HO has supplied.
I) 200 (two hundred) pass books on dtd. 13.10.2014.
II) 100 (one hundred) pass books on dtd. 13.02.2015 to Bhawanipatna Stadium NDTSO prior to the date of fraud i.e. 30.06.2015.
After that also HO has supplied 100 (one hundred) pass book on dtd. 15.10.2015 i.e just before of the last date of fraud i.e. 30.11.2015. Hence it is clear that the pass books supplied by the humble appellant have never been misused for the fraud.
Esteemed Sir, The humble appellant joined the department as Postal Asst. on 16.10.2003. He took the proceedings honestly and dealt with only stock register. The other connected papers such as inquiry reports on fraud by divisional level, regional level & circle level etc. may kindly be got verified. The humble appellant is sure, his name is absent there. Intentionally, the disciplinary authority has entangled the humble appellant with evil intention. The humble appellant prays his Honourable Director of Postal Services to be kind enough and pass orders for setting aside the punishment for which the humble appellant shall remain ever grateful to his kind Honourable Authority."
7. The relevant portion of the order dated 22.11.2019 of the appellate authority is extracted below for kind reference:
" XXXXXX Being aggrieved by the above decision of the disciplinary authority, Sri Singh has submitted his appeal dated 29.08.2019 which was received at RO on 25.10.19. The appellant has put forth the following points in favour of his appeal.
(i) The charge sheet is silent on the date of supply of passbooks but speaks of the acknowledgment of receipt of the pass books as 27.05.2015. The disciplinary authority cited the OA No. 807/2019 11 date of acknowledgment but did not mention the date of receipt by the Bhwanipatna SO.
(ii) The charge sheet speaks of fraud by the SPM Bhawanipatna Stadium SO for the period from 30.06.2015 to 30.11.2015 to the tune of Rs. 7,27,600/-. As per the stock book of Narla Road SO blank pass books of 50 in number were supplied vide invoice no. 1 dtd. 4.6.2014. Those were supplied through HO.
(iii) Narla Road SO was inspected by the then IP and SPOs Kalahandi on 26.11.2015 and both were satisfied on the supply of Pass books.
(iv) The disciplinary authority while discussing the supply of pass books through account bag has cited that it should not contain any other item not meant for HO. In that case HO should have retuned the pass book to Narla Road. But it did not return instead it sent the pass books to Bhawanipatna Stadium SO.
(v) The disciplinary authority has not verified the daily account dtd. 04.06.2014 of Narla Road SO and SO slip of Bhawanipatna Stadium SO.
Lastly the appellant requested the appellate authority to set aside the punishment order issued by the disciplinary authority.
I have gone through the article of charge, defence representation, appeal of Sri Singh and other related records of the case carefully and applied my mind dispassionately. The appellant Sri Singh while working as SPM Narla Road SO had supplied 50 unused blank passbooks to the SPM Bhawanipatna Stadium SO blatantly violating Rule - 6 of POSB manual Vol-I. Normally passbooks were supplied to the SO s by its HO through invoices. For accounting purpose and for checking these invoices will have invoice numbers in running serial year wise. But the appellant had supplied 50 passbooks which were not sent through invoice and hence are not properly accounted for in the stock register of passbooks. Sri Aditya Kumar Majhi the then SPM Bhawanipatna Stadium SO acknowledged the receipt of 50 passbooks on 27.05.2015 from the appellant and used those passbooks fraudulently during the period from 30.06.2015 to 30.11.2015. By doing so the appellant has facilitiated the commitment of massive fraud by Sri Majhi for which the appellant can not absolve himself from the quantum of OA No. 807/2019 12 culpability. There is no provision for supply of blank and unused passbooks by a Sub Office to another Sub Office. The appellant violated the provison of Rule 6 of POSB Manual Vol-I and thereby committed a grave misconduct.
In view of teh above, I Sri G. Gurunathan, Director of Postal Services (HQ), Circle Office, Bhubaneswar being empowered to exercise the statutory powers of DPS, Berhampur Division Berhampur vide Circle Office L. No. ST/2-35(2)/2015 dated 9.06.2016, have gone through the appeal preferred by the appellant and all other connected records of the case very carefully and confirm the punishment order of censure and recovery of Rs. 1,75,000/- (Rupees one lakh seventy five thousand only) in 20 (twenty) equal instalments from the pay of the said Sri Singh, appellant. The appeal is thus disposed off."
8. We have heard learned counsels for both the sides and carefully gone through their pleadings, written note of submission as well as citation relied by them.
9. It is submitted by learned counsel for the applicant that although statement of imputation was supplied to the applicant, but no article of charge was enclosed. It is alleged that the applicant had given 50 numbers of unused passbooks to one Sri Aditya Kumar Majhi who was working as SPM, Bhawanipatna Stadium SO by violating the provisions of Rule 6 of the POSB Manual Volume I and thereby allowed fraud to be committed in respect of the said pass books. Sri Aditya Kumar Majhi used those passbooks to open accounts and prematurely close the said accounts thereby causing fraud to the tune of Rs. 7,27,600/-. In this regard the department had produced the acknowledgment dated 27.05.2015 vide Annexure R/2 said to have been issued by Sri Aditya Kumar Majhi showing that he had received the said 50 numbers of unused pass books from the applicant.
OA No. 807/2019 1310. It is the categorical stand of the applicant that he had not sent any such pass books directly to Sri Aditya Kumar Majhi, SPM, Bhawanipatna Stadium SO but had sent the said 50 numbers of passbooks to the Head Office. In this regard the applicant had insisted that the invoice sent on 04.06.2014 will show the daily account in support of the stand made by the applicant that he had sent 50 numbers of unused pass books to the Head Office. The said invoice dated 04.06.2014 was said to be not traceable as mentioned in the additional counter dated 05.10.2020 filed by the respondents in MA No. 399/2020 which was filed for production of the documents. In this regard learned counsel for the respondents has submitted that since the period of preservation of the said documents was for 18 months as per the Rule filed vide Annexure R/3, therefore, the department cannot be blamed for not production of the said documents either before this Tribunal or during the inquiry in question.
11. Learned counsel for the applicant further submitted that the delay of about more than five years had caused serious prejudice to the applicant as the departmental inquiry was initiated on 01.08.2018 relating to the allegation of an incident that took place on 04.06.2014. It is further submitted on behalf of the applicant that serious prejudice has been caused for non submission of vital documents i.e. the invoice of 04.06.2014 and the respondents have taken advantage of the undue delay to take the plea that the said document is not available since the period of preservation OA No. 807/2019 14 was for 18 months. There are no document or averment from the side of respondents to show that the document in question was destroyed on any particular date by any order passed by any official on any particular date. Learned counsel for the respondents submitted that there is no delay in initiating the inquiry against the applicant with reference to the date chart of the OA, since the matter was detected and the case was taken thereafter to start departmental proceeding against the applicant. He further submitted that since the public money can be recovered at any time, if loss is caused by any fraud practised by the employee, therefore there is no delay.
12. Learned counsel for the applicant had submitted that the document filed vide Annexure R/2 is a manipulated document as there are overwriting with regard to the date and the genuineness of the documents is questionable. In this regard learned counsel for the respondents submitted that there is no material to show that the document filed vide Annexure R/2 is a manipulated document. Learned counsel for the respondents further submitted that the pleadings in para 14 of the counter it is alleged that the fraud in question was communicated in between 30.06.2015 to 30.11.2015. It was submitted by learned counsel for the respondents that the applicant had admitted about the facts alleged against him and referred to the averments made in para 14 of the counter. In this regard, the learned counsel for the applicant had drawn attention of the Tribunal to the show cause reply filed by the learned counsel for the OA No. 807/2019 15 applicant vide annexure A/3, wherein the applicant had specifically taken the stand that he had not supplied the pass book directly to Sri Aditya Kumar Majhi.
13. It was submitted by learned counsel for the applicant that no specific serial number of pass books have been mentioned either in the charge memo, in the inquiry report or in the order passed by the disciplinary authority or the appellate authority. He further submitted that the said fact has much importance in view of the fact that on 13.10.2014, 200 numbers of pass books and on 13.02.2015, 100 numbers of pass books were supplied to the SO in question. Therefore, in the absence of any specific allegation regarding use of any particular pass book for committing the fraud in question cannot be said that the allegation against the applicant is proved. In this regard learned counsel for the respondents submitted that no serial number were assigned to the new pass books in question. Therefore, there is no scope of mentioning of any serial number of any pass books either in the charge memo or the findings of the inquiry officer or the orders passed by the disciplinary and appellate authority.
14. It is the specific stand of the learned counsel for the applicant that no pass book was directly supplied to the sub post office in question but it was sent to the head office since as per rule supply of pass book from one SO to another SO is not permissible. The inquiry officer had given finding that the plea taken by the applicant that 50 numbers of blank passbooks through account bag is not at all convincing, OA No. 807/2019 16 since an account bag is closed between a SO and its HO and vice versa thus any article meant for a office other than HO should find no place in the account bag. Thus, it is an afterthought by the applicant with an intention to dilute the gravity of the article of charge. It was further submitted by the learned counsel for the applicant that Inspector of Posts, Kesinga Sub Division and Superintendent of Post Offices, Kalahandi Division had inspected the post office in which the applicant was working as Sub Postmaster but none of them had indicated about the alleged misconduct in question.
15. It is alleged that the applicant as subsidiary offender has facilitated the commission of the misconduct by the principal offender i.e. Shri A. K. Majhi, SPM, Bhawanipatna Stadium SOs. It is alleged that the applicant had supplied 50 unused passbook in his capacity as Sub Postmaster, Norla Road, SO to SPM, Bhawanipatna Stadium SO.
16. Learned counsel for the respondents drew the attention of the Tribunal to R/2 the document by which it will reveal that 50 number of passbook have been received by SPM, Bhawnipatna Stadium SO. Learned counsel for the applicant had submitted that there is no signature of the applicant in R/2. On the other hand the said document shows that 50 numbers of unused passbooks have been received by SPM, Bhawanipatna Stadium SOs.
17. It is the specific stand of the applicant that the said 50 numbers of unused passbooks have not been directly given by him in his capacity as Sub Postmaster, Norla Road SO to OA No. 807/2019 17 the principal offender i.e. Sri A. K. Majhi, SPM, Bhawanipatna Stadium SOs. It is further categorical stand of the applicant that he had sent the said 50 numbers of unused passbook through daily bag to the head office. In the above context if the statement of the applicant and his stand is examined carefully, then it will reveal that he has never admitted that he had directly sent such unused passbook to SPM, Bhawanipatna Stadium SOs.
18. It is seen that the applicant has been imposed punishment of censure with further direction of recovery of Rs. 1,70,000/- due to his contributory negligence. Justifiability or otherwise of imposition of punishment due to contributory negligence is no more res integra and it would suffice to place reliance on the decision in OA No. 1961/2010 disposed of on 03.06.2015 Bikash Kanti Mishra vrs. Union of India an excerpt from it is as under:
".... it is worthwhile to mention that imposition of punishment for contributory lapse or negligence has received due consideration in many many case in past viz in the case of C.N. Harihara Nandanan vrs. Presidency Post Master, Madras and another, reported in (1988) 8 Administrative Tribunal Case page 673 by the Ahmedabad Bench of the Tribunal. J. M Makwana vrs UoI and others reported in 2002(1)ATJ 283 and by the Cuttack th Bench of the Tribunal in OA No. 634 of 2009 disposed of on 11 March 2010 (Sukomal Bag vrs UOI & Ors.) which was also upheld by the Hon'ble High Court of Orissa vide order dated 22.08.2011 in WP (C) No. 4343 of 2011 in which recovery for contributory lapses/negligence was held to be illegal. Aforesaid being the facts and law, we see no justification to uphold the order passed by the Disciplinary Authority dated 11.05.2010 and the order of the Appellate Authority dated 20.08.2010 which are hereby quashed and the respondents are directed to refund the amount, if any, already recovered from the pay of the applicant within a period of thirty days from the date of receipt of copy of this order."OA No. 807/2019 18
19. In a similar case, Hon'ble High Court of Odisha upheld the order of Tribunal in OA No. 634/2009 (Sukumal Bag versus Union of India) and dismissed the W.P(C) No.4343 of 2011 filed by the Respondent-Departmen vide order dated 22.08.2011 in the following terms:
"Heard learned counsel for the petitioner.
This Writ Petition is directed against the order of the Central Administrative Tribunal, Cuttack Bench, Cuttack dated 11.11.2010 in OA No.634 of 2009. The opposite party was the applicant before the Tribunal. The Original Application was filed before the Tribunal challenging the order of punishment directing recovery of an amount of Rs.60,000/- from the pay and allowance of the opposite party on monthly instalments of Rs.6,000/- starting from December, 2007 onwards. The Tribunal inParagraph-4 of the impugned order specifically came to a conclusion that it is not the case of the petitioners that the opposite party had misappropriated the Government money nor was the case of the petitioners that for the direct culpable negligence pecuniary loss was caused to the petitioners. It is the positive case of the petitioners that due to failure in supervisory duty of the opposite party another employee misappropriated the Government money and subsequently he died by committing suicide.
On the basis of the aforesaid observation, the Tribunal directed that no punishment for recovery of a sum of Rs.60,000/- could have been imposed on O.A.No.260/479/2016 the opposite party by the Disciplinary Authority and accordingly allowed the Original Application and set aside the order of punishment.
After hearing learned counsel for the petitioners and on perusal of the reasons assigned by the Tribunal in the impugned order, we find no justification to interfere with the same.
The Writ Petition is accordingly dismissed".
20. Since there is no material to show that the applicant had misappropriated any money in connection with the alleged incident. There is also no proof that he was directly responsible due to his culpable negligence for causing OA No. 807/2019 19 pecuniary loss to the department but the decision as cited above in para 18 & 19 cannot be of any help to the applicant since it is neither the case of the applicant nor the department there was any failure on the part of the applicant in his supervisory duty by which the principal offender committed the mis-conduct in question. In the above circumstances this Tribunal finds that the order of punishment of recovery is not justifiable and cannot be legally sustained. Therefore, the order of punishment vide Annexure A/4 for recovery of Rs. 1,75,000/- is set aside. However, it cannot be said that the applicant was not responsible in any way for the incident in question in which the principal offender was able to misappropriate money, therefore the matter is remanded back to the Disciplinary Authority to consider the matter in accordance with law and to impose any other punishment as permissible under the law within a period of three months from the date of receiptof copy of the order.
21. The OA is accordingly disposed of with above observation but in the circumstances no order as to cost. MAs, if any, too are accordingly disposed of.
(T. JACOB) (SWARUP KUMAR MISHRA) MEMBER (A) MEMBER (J) (csk)