Central Administrative Tribunal - Jodhpur
Shrawan Kumar Vaishnav vs M/O Communications on 4 May, 2024
1 (OA No.73/2014)
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH, JODHPUR
Original Application No.73/2014
Pronounced on 04.05.2024
(Reserved on 08.04.2024)
CORAM
HON'BLE MR. JUSTICE RAMESHWAR VYAS, MEMBER (J)
HON'BLE DR. AMIT SAHAI, MEMBER (A)
Sharwan Kumar Vaishnav, S/o Late Shri Bansi Lal Vaishnav, aged
about 54 years, R/o H.No.2/748, Kuri Housing Board Basani-I,
Jodhpur, District Jodhpur. (Office Address:- Posted at Marwar HO as
PA SBCO in Postal department).
.......Applicant
By Advocate: Mr. S.P. Singh
Versus
1. Union of India, through the Secretary, Government of India,
Ministry of Communication, Department of Post, Dak Bhawn,
New Delhi.
2. The Chief Post Master General, Rajasthan Circle, Jaipur-302 007.
3. The Director, Postal Services O/o Postmaster General, Western
Region, Jodhpur.
4. Superintendent of Post Offices, Pali Division, Pali.
........Respondents
By Advocate: Mr. K.S. Yadav
2 (OA No.73/2014)
ORDER
Hon'ble Mr. Justice Rameshwar Vyas, Member (J) Being aggrieved by the punishment order dated 04.10.2012 (Annexure-A/1) passed by the Disciplinary Authority i.e. respondent No.4, the applicant has preferred the instant OA with prayer to quash and set aside the above punishment order, as also the order of the Revisional Authority dated 30.12.2015 (Annexure- A/12) affirming the order of the Disciplinary Authority.
The facts of the case in brief are as under:-
2. The applicant was appointed on the post of PA on 25.02.1981. While posted at Jodhpur HO as Postal Assistant SBCO during period from 15.03.2008 to 14.01.2009, a fraud was committed in the Phalodi Post Office in different SB Accounts.
The respondents vide order dated 22.02.2011 issued Memo of Charges with statement of imputation of misconduct against the applicant to the effect that while working as PA SBCO Jodhpur HO from 15.03.2008 to 14.01.2009, he received and checked SB Vouchers of Phalodi LSG SO as mentioned in the charge memorandum, but failed to note the signature of the depositors were not verified by the SPM and BAT. Terming the above 3 (OA No.73/2014) action as negligence, the allegation was made against the applicant that due to his negligency a big fraud was facilitated at Phalodi LSG SO.
The applicant was given opportunity to make a representation against the charge memo. On 14.03.2011, he
submitted his defence. After going through the charge memo, defence and relevant documents, the Disciplinary Authority, the Superintendent of Post Offices, Pali Division in exercise of powers conferred under Rule-12 of CCS (CCA) Rules, 1965 vide order dated 04.10.2012 (Annexure-A/1) ordered to recover the amount of Rs.50,000/- from the applicant w.e.f. 01.10.2012 in the monthly installment. The revision petition filed against the above order was dismissed on 30.12.2015 (Annexure-12).
Being aggrieved with the above, the applicant has preferred this OA praying to quash and set aside the impugned punishment order dated 04.10.2012 (Annexure-A/1) and the order passed by the Revisional Authority dated 30.12.2015 (Annexure-A/12).
It is the case of the applicant that the fraud was not committed by the applicant. The applicant was posted at Head Office, Jodhpur, whereas the fraud was committed at Phalodi Post 4 (OA No.73/2014) Office by two officials namely Pancha Ram and Arjun Ram. The applicant had no link with the alleged offence. Punishment of recovery has been awarded without fixing the liability upon the applicant. Checking of withdrawal form is supposed to be done by the Postmaster of the same Post Office, but the respondents without taking into consideration the evidence placed on record, rejected the representation filed by the applicant. Punishment of recovery of Rs.50,000/- is in violation of Section 4 of the Public Accountants Default Act, 1850. It was necessary for the competent authority to first arrive at clear finding that the employee was responsible for a particular act or acts of negligence or breach of order or rules. The respondents did not find proved the fault of the applicant and punished him on suspicion or presumption. Punishment of recovery can be made when nexus of the delinquent official to that of loss caused was proved.
It is the case of the applicant that neither the nexus has been proved nor any loss has been caused on account of any actions of the applicant. It is averred that calculation of quantum of punishment is also not disclosed. The amount is already recovered from the delinquent, but the respondents recovered the same 5 (OA No.73/2014) amount from the applicant and caused illegal profit to the department. Terming the action of the respondents, the applicant prayed for dismissal of the impugned punishment order.
3. It is the reply of the respondents that the applicant checked 10 SB vouchers of withdrawal, but did not point out the irregularities. In his written statement dated 20.09.2010, he accepted the irregularities, therefore, he was liable to be punished for this grave negligence towards his duty. The applicant was identified as subsidiary offender in Phalodi fraud case. A charge- memo was issued against the applicant keeping in view recovery aspect of the amount of loss suffered by the Government on account of contributory negligence of the official. All the subsidiary offenders in the case were imposed penalty of recovery on account of lapses on their part. Total loss due to fraud at Phalodi was to the tune of Rs.1.97 crores. A loss to the department due to negligence on the part of the applicant was in the range of Rs.50,000/- to Rs.1,00,000/-. It is further averred that vide DG P&T order dated 13.02.1981 penalty of recovery can be awarded in a case where it has been established that the negligence or breach of orders on the part of the Government servant has led to the loss 6 (OA No.73/2014) to the department and it is not possible to recover the entire amount of loss from the real culprit and a considerable amount of loss is still lying unrecovered even after recovery from many subsidiary offenders. It is further averred that negligence on the part of the applicant apparently contributed in non-detection of the fraud in time and thereby resulted in enlargement of the fraud.
As per the para 11 (e) of the Postal Manual for SB Control Pairing and Internal Check Organization, the PA SBCO has been required to check out the following to which the applicant was charged with:-
"(1) WHETHER the balance as shown in the Pay-in-slip and application for withdrawal by the post office and the depositor agrees with that in the ledger card on the date of deposit/withdrawal. If the difference is due to non-addition of interest in the pass book, whether the pass book is received for entry of interest?
(2) That in case of withdrawal exceeding Rs.2000/- the signature of the depositor on the withdrawal form has been attested by two postal officials"
It was therefore, well within the duty of the applicant to carry out all those checks for which the applicant has been charged with. The charge of non-verification by the PA/SPM Phalodi LSG, 7 (OA No.73/2014) is fully proved because the withdrawal forms referred to in the Memo of Charges were not having thereon signatures of PA/SPM Phalodi in token of having verified by him, the signature for the depositors.
It is further contended that ledger cards in respect of SB Accounts continued to be maintained at the level of Sub Post Office as well as the Head Post Office concerned. It is further averred that incident took place in the year 2005 when the applicant was working as PA (SBCO) Jodhpur HO and had failed to point out the irregularities in the SB objection Register. Denying the claim of the applicant, the respondents prayed to dismiss this OA.
4. The applicant filed rejoinder reiterating his stand taken in the OA.
5. Heard learned counsel for the parties and perused the material available on record.
7. It is contended by the learned counsel for the applicant that the applicant was not involved in the act of fraud committed at Phalodi Post Office. Pancha Ram and Arjuna Ram, who were working at Phalodi Post Office, are the main offenders. Since there 8 (OA No.73/2014) is no nexus between the act of the applicant and the fraud committed at Phalodi Post Office, no recovery can be made from the applicant for the loss caused to the department on account of the fraud committed by the main offenders. It is further submitted that quantum of amount attributed to the applicant has no basis. Even in the charge memo, it has not been clarified that as to how Rs.50,000/- has been assessed for the act of the applicant causing loss to the Government. In support of his contention, learned counsel for the applicant relied upon the following judgments:-
(i). OA No.156/2011 (Sh. B.L. Verma vs. Union of India & Ors.) decided on 01.03.2012.
(ii). DB civil Writ Petition No.12818/2012 ( Union of India & Ors. Vs. Sh. B.L. Verma) decided on 20.03.2014.
(iii). OA No.499/2012 (Jassa Ram vs. Union of India & Ors) decided on 08.06.2018.
(iv) OA No.380/2022 (S.V. Kadam vs. Union of India & Ors) decided on 05.03.2024.
(v). DB Civil Writ Petition No.5464/2017 (Union of India & Ors. Vs. Banshidhar & Anr.) decided on 14.10.2019.9 (OA No.73/2014)
(vi). DB Civil Writ Petition No.2393/2019 (Union of India & Ors, vs. Radhey Shyam Swarnkar) decided on 11.04.2019.
(vii) OA No.1091/2013 (M.D. Lateefuddin vs. Union of India and Ors) decided on 22.11.2017.
(viii) OA No.251/2012 (S.N. Singh Bhati vs. Union of India & ors) decided on 29.08.2013.
(ix) OA No.683/2011 (Anani Prasad Vishwakarma vs. Union of India & Ors) decided on 17.01.2014.
8. On the contrary, learned counsel for the respondents submitted that the applicant failed to object the irregularities of not challenging the non-verification of the specimen signatures of the depositors on the withdrawal forms by the PA/SPM Phalodi LSG and this check was invariable required to be carried out by him. The applicant has failed to perform his duty which facilitated the commission of offence by main offenders. As per circular issued by the Government, recovery of penalty is permissible. The respondent did not commit any illegality in ordering the recovery of Rs.50,000/- on account of loss caused to the department.
9. Having regard to the submissions made by the learned counsel for the parties and material available on record and the 10 (OA No.73/2014) impugned order dated 04.10.2012 (Annexure-A/1) i.e. punishment order imposed by the Disciplinary Authority reveals that as per the conclusion of the Disciplinary Authority, the checking of vouchers and finding out the irregularities is the duty of the SBCO Branch which is established in the Head Offices. As observed by the Disciplinary Authority, the applicant checked 10 vouchers, but failed to point out the irregularities like signature of depositors not verified by SPM and BAT.
Huge amount were withdrawn at Phalodi Post Office with the connivance of some postal staff members causing loss to the Government. It is not in dispute that the applicant was not involved in the commission of offence of forgery. As per the charge memo, the applicant failed to point out the irregularities committed at Phalodi Post Office that the signatures of the account holders were not verified by the SPM & BAT. The applicant while working as PA SBCO Jodhpur HO was required to point out the above irregularities in SB Vouchers of Phalodi LSG SO. Record reveals that the applicant checked the SB vouchers, but failed to raise any objection against non-verification of the signatures of the account holders by SPM & BAT of Phalodi Post Office. 11 (OA No.73/2014)
The applicant himself admitted the above irregularities in his written statement dated 20.09.2010. Now, question arises whether on account of failure to detect the irregularities committed at sub post office, whether loss caused to the Government can be recovered from the applicant or not.
Before answering the above question, it would be beneficial to consider Rule 11 of the CCS (CCA) Rules, 1965 and also Rule 204 of Postal Manual. As per Rule 11 of the CCS (CCA) Rules, the following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely:-
Minor Penalties -
(i) censure;
(ii) withholding of his promotion;
(iii) recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders;
(iii a) reduction to a lower stage in the time-scale of pay by one stage for a period not exceeding three years, without cumulative effect and not adversely affecting his pension.
(iv) withholding of increments of pay.
As per Rule 106 of the Postal Manual, penalty of recovery can be imposed only when the Government servant is responsible 12 (OA No.73/2014) for a particular act or acts of negligence or breach of orders or rules and that negligence or breach caused the loss.
The same question arose in OA No.499/2012 (Jassa Ram vs. UOI & Ors.) decided by this bench on 08.06.2018, wherein this bench in para No.9 observed as under:-
"Admittedly, at the relevant point of time when the fraud took place in Sub Post Office, Phalodi, the applicant was working at Jodhpur Head Office, which is at a distance of about 130 Kms. As per the respondents‟ own case, the fraud in Phalodi Sub Post Office was committed for a long time and it came to light on 4.6.2009 on a sudden visit of the then Senior Superintendent of Post Offices, Jodhpur. Two officials namely Shri Pancha Ram Bishnoi and Arjun Ram Bishnoi working at Phalodi Sub Post Office were identified as offenders and an FIR was also registered against them. The respondents themselves have pleaded that there is no direct connection/involvement of the applicant in Phalodi fraud case, but he was chargesheeted as he had shown negligence while performing his duty at Jodhpur Head Office and facilitated the main offenders of the Phalodi fraud case indirectly. A recovery of Rs. 50,000/- has been sought to be justified by making a further assertion that the applicant has not been held responsible for whole of the fraud of Rs. 1.97 crores committed by those two offenders at Phalodi Sub Post Office. We, however, do not find anything on record as to how the applicant was identified as subsidiary offender for the lapses committed at Phalodi Sub Post Office by the aforesaid two offenders. Out of those two offenders, one has been dismissed from service and disciplinary case with regard to another one is at final stage. It is also the case of the respondents that three CBI cases against those two main offenders are sub-judice before the Special Judge, CBI Court, Jodhpur. It appears that the loss caused to 13 (OA No.73/2014) the Government has now been sought to be recovered from the other so called subsidiary offenders by any means. Repeatedly, it has been pleaded by the respondents that the applicant indirectly supported the respondents, but nothing tangible has come up on record to support the said contention as to how the applicant supported the main offenders indirectly in committing the fraud to the tune of Rs. 1.97 crores. In an identical case, dealing with the same very incidence of misappropriation of funds at Phalodi Sub Post Office, this Tribunal while deciding OA No.251/2012 titled as S.N.Singh Bhati vs. Union of India and Ors. has already taken a view that as per Rule 11 of the „1965 Rules‟ penalty of recovery can be imposed only in exceptional circumstances and for special reasons to be recorded in writing. It has further been held that after having issued a charge sheet, under Rule 11 of the „1965 Rules‟, the penalty of recovery could have been ordered by the respondents only as an exceptional case for the reasons to be recorded in writing and the delinquent official should have had a reasonable opportunity of being heard regarding the exceptional and compelling circumstances on the basis of which such recovery is being ordered. The instant case is squarely covered by the said judgment. Thus, there is no escape but to hold that the order dated 25.6.2012 (Ann.A/2) inflicting penalty of recovery of Rs. 50,000/- and the order dated 7.11.2012 (Ann.A/1) passed by the Appellate Authority rejecting the applicant‟s appeal against the order of penalty, cannot be sustained and the same deserve to be quashed."
In OA No.1091/2013 (M.D. Lateefuddin vs. Union of India and Ors) decided on 22.11.2017 by the Hyderabad bench of this tribunal, it was held that penalty of recovery of loss cannot be imposed on a Government servant for his failure or negligence in adhering to procedures/instructions, which might have resulted in 14 (OA No.73/2014) the committal of fraud by a third party, the respondents are not justified in imposing a penalty of recovery on the applicant.
Similarly in OA No.251/2012 (S.N. Singh Bhati vs. Union of India & ors) decided on 29.08.2013, this bench held that as per Rule 11 of the CCS (CCA) Rules, 1965, the recovery of any penalty can be imposed only in any exceptional circumstances and for special reasons recorded in writing. The above judgment was upheld by the Hon‟ble Rajasthan High Court in DB Civil Writ Petition No.2494/2014.
In one another case i.e. in OA No.683/2011 (Anani Prasad Vishwakarma vs. Union of India & Ors) decided by the Allahabad bench of this Tribunal on 17.01.2014, it was observed that from perusal of the charge-sheet it is evident that the applicant has not been charged for commission of any fraud directly, but he was ultimately found responsible for slackness in the duties and for not making proper supervision over the work. Since the applicant was not directly involved in the fraud committed by other persons, the bench was of the opinion that the applicant could not be held responsible for the said fraud and any recovery cannot be ordered from the pay of the applicant.
15 (OA No.73/2014)
10. Coming to the facts of the present case, we note that in the present case the applicant was not involved in the act of forgery committed at Phalodi Post Office. It is true that he failed to object the irregularities committed at Phalodi Post Office regarding non- verification of the signature of the depositors. But, in our considered view, keeping in view the principles enunciated in the above referred judgments, he cannot be held liable for causing loss to the Government on account of his failure. In our considered view the loss was not direct result of the failure on the part of the applicant to detect irregularities. Loss was the result of fraud and not of negligence on the part of the applicant. At the most, for his failure to point out the irregularities, he could have been imposed any other minor penalty but not the recovery of loss caused to the Government, for which he was not responsible.
In the present case, the respondents failed to justify the assessment of Rs.50,000/- attributable to the applicant in causing loss to the Government. We see no exceptional circumstances in the matter to justify the order of the respondents imposing penalty upon the applicant. It seems that penalty of recovery has been imposed upon the applicant to mitigate the loss caused to the department. In the present case, failure on the part of the applicant 16 (OA No.73/2014) to detect the irregularities may invite some other minor penalty but not recovery of any amount from the applicant against the loss caused to the Government.
While adopting the reasons given in the order passed by this bench in OA No.499/2019 (Jassa Ram vs. Union of India & Ors.), we are inclined to allow the present OA. Accordingly, the impugned order of the Disciplinary Authority dated 04.10.2012 (Annexure-A/1) and the Revisional Authority dated 30.12.2015 (Annexure-A/12) are quashed and set aside. The respondents are directed to refund the recovered amount i.e. Rs.50,000/- to the applicant within a period of three months from the date of receipt of a copy of this order.
11. The OA is allowed as stated above. There shall be no order as to costs.
(AMIT SAHAI) (RAMESHWAR VYAS) MEMBER (A) MEMBER (J) Rss