Dinesh Kumar vs Union Of India And Others

A.K. Bishnoi, Member(A)

The applicant in the present OA was working as Postal Assistant in the Department of Posts.  On 26.10.2016 (Annexure A/3), he was issued a charge sheet with the following imputation of misconduct:

"Sh. Dinesh Kumar while working as BNPL Booking PA at Indraprastha Head Post Office, New Delhi-110002 during the period from October 2012 to April 2014 is alleged to have failed to book BNPL articles with proper checking of weights, destination and actual number of articles as per the list provided. The BNPL codes such as " Other Without Agreement" and codes in the names of Firms/Companies tendering articles of EPP were alleged to have been used for booking/receiving BNPL articles.

Thus, Sh. Dinesh Kumar, PA, Indraprastha Head Post Office, New Delhi-110002 by the above mentioned acts is alleged to have exhibited lack of devotion to duty and acted in a manner unbecoming of a Govt. Servant thereby violating the provisions of Rule 3 (1) (ii) and Rule 3 (1)(iii) of CCS (Conduct) Rules 1964."

The applicant, thereafter, submitted his representation dated 04.11.2016 (page 26) and asked for certain documents to be provided to him for inspection. Subsequently, the applicant made several attempts, but one particular document namely, "the details of envelopes or Photocopy of the same which were booked improper destinations" was not made available. Thereafter, the applicant submitted his reply dated 01.11.2017 (Annexure A/16). The respondents thereafter, passed the impugned order dated 21.03.2018 (Annexure A-1), the operative part of which reads as follows:

"It is clear that Sh. Dinesh Kumar booked 77726 BNPL articles in " Other without agreement instead of proper BNPL codes which facilitated fraud to the tune of Rs. 1247502.30 on his part. I therefore order that the amount of Rs. 1247502.30 be recovered in 84 monthly instalments @ Rs. 15000/- (Fifteen Thousand only) per month in 83 instalments and 84th instalment of Rs. 2502.30 from the pay of the official."

The applicant has sought the following reliefs in the present OA:

"(i) quash and set aside the impugned order dated 21.03.2018 (Annexure A-1) & 27.06.2018 (Annexure A-1A) with all consequential benefits.

(ii) the respondents be directed to refund the recovered amount to the applicant along with the interest at the rate of 12% p.a.

(iii) may also pass any further order(s), direction(s) as be deemed just and proper to meet the ends of justice."

The respondents have filed counter reply in which they have disputed the contentions made in the OA.

Sh. S.K. Gupta, learned counsel for the applicant submits that the impugned order should be set aside on the ground that the relevant documents which the applicanthad sought to be supplied to him, were not provided and thus, he was denied an opportunity to make an effective representation, infringing his natural rights. He has also contended that the impugned order relies on a communication dated 04.12.2017, which was not in existence at the time of the issuance of the charge sheet as also when he made his reply on 01.11.2017. Thus, he has been denied the right to make an effective representation since the documents relied upon, in imposing the recovery on him, were not available with him and so the impugned order is bad in law. He also submits that the CLI report, which is a preliminary report, was also not supplied to him. Had the report been supplied to him, he could have made more effective representation.

Sh. R.K. Sharma, appearing on behalf of the respondents contends that as per the order of imposing the minor penalty under CCS CCA (Rules), 1965, as read with the orders of the departmental proceedings, providing all the documents to the charged officer, is not mandatory and it is at the discretion of the concerned authority. He vehemently contends that the applicant was provided full opportunity to inspect the documents, but agrees that one of the documents was not available and so, could not be made available for inspection.

I have carefully gone through the pleadings on record and also heard learned counsels for both the sides. A perusal of the impugned order reveals that reliance has been placed on certain communication which was not in existence at the time of issuance of the charge sheet as also the filing of the representation (page 21). It reads as follows:

"It was intimated by the SSPOs, New Delhi Central Division, New Delhi-110001 vide his letter no. F-1/Disc-03/Dinesh/17-18 dated 04.12.2017 that Sh. Dinesh Kumar has failed to book 77726 articles amount to Rs. 1247502.30 (financial implication is on minimum rates of Speed Post articles) with proper checking of weight, destination and actual number of articles as per the list provided. The BNPL codes such as "Other without Agreement" and codes in the name of Firms/Companies tendering articles under EPP were alleged to have been used for booking/receiving of BNPL articles."

It is also an admitted fact that, one of the documents sought by the applicant was not made available to him affecting his natural right to make an effective reply. Reference is also being made to the order passed in OA No. 2618/2018 dated 22.08.2019 in which the following order was passed:

"Hence, the impugned order is quashed. The respondents are directed to give a copy of Circle Level Investigation Report to the applicant and proceed in the matter in accordance with the rules and regulations on the subject. The inquiry shall be completed as expeditiously as possible and preferably within a period of six months. The applicant is also directed to cooperate in the said proceedings and submit his contentions with a view to avoid any undue delay in completion of the same. In case of any delay caused by non-participation of the applicant, the period given for completion of proceedings shall automatically stand extended to that extent. After passing the final order, the respondents shall make recovery, if any due, as per rules from the applicant"

From the facts and circumstances as discussed above, it is clear that, while coming to the conclusion of effecting recovery from the charged officer, reliance has been placed on certain documents, which were not available at the time of filing of the representation by the applicant. It is also clear that the natural rights of the applicant have been adversely affected by non availability of those documents, which could have made it possible for him to submit a stronger defence of his case.

Under the circumstances, the impugned order dated 21.03.2018 is set aside. It is, however, made clear that the competent authority is at liberty to proceed and take necessary action against the applicant, in accordance with rules, but the applicant shall be given due opportunity to make an effective representation by providing him access to any material on which reliance is placed, before making any final order.

The OA is accordingly disposed of. No costs.