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Judgment
ORDER
By Hon’ble Mr. Justice Om Prakash VII, Member (J)
This O.A. has been filed by the applicant under section 19 of the Administrative Tribunals Act, 1985 with the following reliefs:-
i)To issue a suitable order or direction to call for record and set aside the impugned order dated 29.11.2014 (Annexure No. 1).
ii) To issue a suitable order or direction to the respondents to refund the amount which has already recovered.
iii) To pass such other and further order as this Hon’ble Tribunal may deem fit and proper in the facts and circumstances of the case.
iv) To award cost of the petition in favour of the applicant”.
The brief facts of the case are that the applicant, while working as S.D.I Lalganj received a charge sheet dated 28.10.2014 under Rule 16 of CCS (CCA) Rules, 1965. The allegation leveled against the applicant was that applicant while working as S.D.I Lalganj did not make inspection during the period from 16.09.2010, 18.10.2011, 31.10.2012 and 07.12.2013 of Sakha Dakghar Pakarikala and did not make inspection of RD and saving bank’s account. Due to this reason, misappropriation of money made by Raj Kumar, B.P.M. could not be detected on time. Applicant submitted reply to the chargehseet dated 20.11.2014 denying the charges leveled against him. Respondent No. 2 did not agree with the reply submitted by the applicant and imposed punishment of recovery of Rs. 6,13,360/- in 88 equal installment of Rs. 6970/-per month vide order dated 29.11.2014. Being aggrieved of the aforesaid order, applicant filed appeal on 09.01.2015 before the respondent No. 3 but the same has not been decided so far.
Per contra, learned counsel for the respondents filed counter affidavit, stating therein that applicant was working as Inspector of Post Offices, Lalganj Sub Division Azamgarh from 18.04.2010 to 02.04.2014. During the aforesaid period, a fraud amounting to Rs. 1120895/- came into light in RD/SB accounts at Sakha Dakghar Pakarikala. The applicant failed to verify the balance of SB/RD accounts by making inspection. This shows the carelessness and negligence on the part of the applicant. Charge sheet was issued to the applicant. Applicant submitted reply to the same, which was carefully examined and disciplinary authority awarded the punishment of recovery of Rs. 6,13,360/- in 88 equal installment of Rs. 6970/-per month vide order dated 29.11.2014 along with punishment of ‘Censure’. Applicant preferred appeal but without waiting the decision, he has filed O.A. before this Tribunal.
Rejoinder affidavit has also been filed by the applicant in which the applicant has reiterated the facts as stated in the OA and denied the contents of the counter affidavit.
We have heard Shri B.N Singh, learned counsel for the applicant and Shri Raghvendra Pratap Singh, learned counsel for the respondents and perused the record.
Learned counsel for the applicant argues that applicant was not directly responsible for misappropriation of alleged money. Admittedly, the fraud was committed by Mr. Raj Kumar, BPM, Pakarikala. Learned counsel for the applicant further argues that the pecuniary loss caused to the department was not on account of the applicant. The punishment order shows that misappropriation was started since long back but the applicant joined on 18.04.2010. Therefore, he is not responsible for the same. It is further argued that as per Postal Saving Bank Niyamawali Khand 1, Rule 75 (1), the Divisional Head SSPOs send annual report every year upto 30th June to CPMG for verification of account, hence he would also be responsible for the same but no action has been taken against him. It was also argued that enquiry was not concluded in accordance with the procedure. Thus, there is violation of principle of natural justice. It is also argued that since applicant was not directly responsible for the loss said to have been caused to the Government, therefore, no recovery could be made. It is next argued that act of the applicant merely constitute negligence and it cannot be held that said act comes under the definition of financial misconduct. Learned counsel for the applicant has relied upon the following case laws:-
Smt. Kalpana Shinde and others Vs. Union of India and others reported in 2005 (1) ATJ page 47;
Rama Shankar Yadav Vs. Union of India and others decided on 11.12.2020 in OA NO. 1537/2014 by this Tribunal.
Ram Bipat Yadav Vs. Union of India and others decided on 15.12.2022 in OA NO. 289/2015 by CAT, Allahabad Bench;
Ram Palat Ram Vs. Union of India and others decided on 10.05.2022 in OA No. 39 of 2015 by this Tribunal.
Daya Shankar Ram Vs. Union of India and others decided on 16.07.2024 in OA No. 694/2014 by this Tribunal.
Learned counsel for the applicant further argued that applicant’s case is squarely covered with the law laid down by this Tribunal in the aforesaid cases. Thus, recovery order passed in the matter is liable to be set aside.
On the other hand, learned counsel for the respondents did not dispute the fact that Shri Raj Kumar, BPM was held responsible for the loss caused to the Government amounting to Rs. 1120895/-. Learned counsel for the respondents further argued that though the applicant cannot be held responsible for the loss caused to the Government but for the act of negligence the department can initiate disciplinary proceeding against him. Learned counsel for the respondents also argued that according to the duty entrusted to the applicant, he had to visit the Branch Post Offices quarterly, but applicant had failed to visit the Branch Post Offices and facilitated Shri Raj Kumar, BPM for misappropriation of amount of Rs. 1120895/-. Since the applicant could not shoulder his responsibility and discharge his duty according to Rule 355 (2) of Postal Manual Volume VIII, accordingly he was served with a memo of charges under Rule 16 of CCS (CCA) Rules, 1965 vide letter dated 29.11.2013 and after considering reply submitted by the applicant to the charge sheet, respondents has rightly awarded punishment to the applicant.
Learned counsel for the respondents has referred to the judgment and order passed by the Hon’ble High Court of Allahabad passed in Writ No. A 34398 of 2012 (Union of India and others Vs. Babu Ram Verma and another) decided on 3.4.2014 wherein Rule 11 of the CCS (CCA) Rules, 1965 has been discussed.
We have considered the rival submissions made by learned counsel for parties and gone through the entire record.
Before dealing with the submissions, it will be useful to quote the judgment and order passed in OA No. 39/2015 decided on 10.05.2022:-
“OPEN COURT
CENTRAL ADMINISTRATIVE TRIBUNAL,
ALLAHABAD BENCH, ALLAHABAD
*****
(This the 10th Day of May, 2022)
Hon’ble Mr. Tarun Shridhar, Member (A)
Hon’ble Ms. Pratima K. Gupta, Member (J)
ORIGINAL APPLICATION NO. 330/00039 of 2015
Ram Palat Ram son of Sawaru Ram R/o village and post Bhawarpur via Tarawa District Azamgarh.
……………. Applicant
By Advocate: Shri B.N Singh
Versus
1.Union of India through its Secretary Ministry of Communication and Information Technology Department of Post Dak Bhawan, New Delhi.
2.The Sr. Supdt. Of Post Offices Azamgarh Division, Azamgarh.
3.The Director Postal Service Gorakhpur Region, Gorakhpur.
….. …………. Respondents
By Advocate: Shri N.P Shukla
O R D E R
By Hon’ble Mr. Tarun Shridhar, Member (A)
Shri B.N Singh, learned counsel for the applicant and Shri Dharmendra Tiwari holding brief of Shri N.P Shukla, learned counsel for the respondents are present.
2.The applicant is aggrieved by an order dated 17.10.2014 bearing No. F-4/1/6/14-15/Ram Palat Ram/DP Azamgarh vide which a penalty of stoppage of one increment for the period of three months without cumulative effect has been imposed upon him. Along with this penalty has been imposed a recovery of Rs.291536/- in 76 equal instalments of Rs. 3836/- each. By virtue of the present original application, the applicant seeks the following reliefs:-
“(i)to issue a suitable order or direction to call for record and set aside the impugned order dated 17.10.2014 (Annexure No.1)
(ii)To issue a suitable order or direction to the respondents to refund the amount which has already recovered.
(iii)To pass such other and further order as this Hon’ble Tribunal may deem fit and proper in the facts and circumstances of the case.
(iv)To award cost of the petition in favour of the applicants”.
3.Brief facts of the case are that the disciplinary authority issued a chargesheet upon the applicant under Rule 16 of the Central Civil Services (CCA) Rules, while he was posted as Postal Supervisor Lalganj Mandal Azamgarh. The primary allegation against the applicant was that while he was holding the said charge he failed to exercise strict vigil and supervision over the functioning of Branch Post Office Pakdi which led to misuse and misappropriation of money from a large number of postal accounts.
4.Learned counsel for the applicant argues that contrary to the dates referred in the chargesheet and the order passed by the disciplinary authority, the applicant held the charge of Postal Supervisor Lalganj for a very short period of three months. He draws attention to the documents he has placed on record to substantiate this fact which indicates that the applicant assumed charge at Lalganj on 21.5.2011 and handed over this charge on 25.08.2011 which is only a period of three months. Learned counsel further submits that there were 45 Branch Post Offices under the supervisory charge of the applicant and within this short period, it was humanly impossible for him to conduct the inspection of all such Post Offices and that too very intensively. Drawing attention to the chargesheet as also impugned order, learned counsel mentions that the only charge against the applicant is his inability to exercise control and supervision of Branch Post Offices. Nowhere has it been alleged that the applicant was, either directly or indirectly, responsible for misappropriation/ embezzlement or any other such misconduct amounting to financial irregularities. Learned counsel submits that the order passed by the Disciplinary Authority by itself states that the financial misappropriation has been done by Shri Raj Kumar who was posted as Branch Post Master Pakdi. He further submits that it is grossly unfair and unjust to hold the applicant responsible for an act committed by someone else. The entire guilt in the matter squarely rests on the singular shoulder of Shri Raj Kumar, hence subjecting the applicant to any punishment is against the principles of natural justice. The applicant had made a detailed submission before the Disciplinary Authority clearly bringing out his innocence in the matter but the disciplinary authority chose to ignore the same and imposed the penalty of stoppage of one increment for three months and recovery of Rs. 291536/-. Applicant’s appeal was also not decided by the appellate authority within time and was kept pending, hence the applicant had no choice but to approach this Tribunal.
5.Learned counsel for the applicant submits that the initial charge sheet under the CCA (CCS) Rules in itself is defective and cannot be sustained as there is no mention of documents or witnesses in support of the charges framed against the official i.e. the applicant. He further states that on the face of it, it appears that the applicant has been made a scapegoat since no other supervisory officer/official has been held similarly responsible. Moreover, it is crystal clear from the record that there is no direct involvement of the applicant in the alleged embezzlement of public funds. Hence, he has been un-justly treated in these disciplinary proceedings.
6.On the other hand, learned counsel for the respondents contends that since these are the proceedings under Rule, 16 which is only for imposition of minor penalty, there is no statutory requirement of an inquiry, hence there is obviously no requirement of reliance upon any witnesses or documents.He also draws our attention to both the orders of the Disciplinary Authority and the Appellate Authority highlighting the point that these orders are well reasoned orders and the entire proceedings including the appeal have been conducted in accordance with law.
7.Learned counsel for the respondents also draws attention to the order passed by the Hon’ble High Court in Writ Petition No. 34398 of 2012 wherein the court had held that if there are no procedural irregularities or lapses in the disciplinary proceedings, the Tribunal should not interfere in the proceedings.
8.During the course of the hearing, the learned counsel for the applicant drew attention to the order passed by this Tribunal on 06th October, 2016 in the case of Rajdeo Yadav Vs. Union of India and Ors. (OA No. 330/01525/2014) in similarly situated matter wherein the facts and circumstances were also quite identical. A Division Bench in this OA has held that Rule 11 of CCA (CCS) Rules, 1965 which list the penalties does not confer any power upon respondents to impose the penalty of recovery unless it is established that the Government servant was responsible for a particular act or acts of negligence or breach of orders or rules and that such negligence or breach caused the loss.
9.Learned counsel for the applicant further states that this view is supported by several judgments by various Benches of the Central Administrative Tribunal some of which are listed below:-In OA No. 750 of 1998, J.M. Makwana Vs. Union of India and others, decided on 4.9.2001 by CAT, Ahmadabad Bench, OA No. 344/203 along with other OAs decided on 22.11.2004 by the CAT, Jabalpur Bench (Circuit at Gwalior), OA No. 1266 of 2009 P.K. Sinha Vs. Union of India and others, OA No. 459/PB/2009- Smt. Veena Mahay Vs. Union of India and others and OA No. 497/09 Shiv Bhushan Singh Vs. Union of India and others.
10.For better clarity the Rule 11 of the CCS (CCA) Rules, 1965 is quoted below:-
“Minor Penalties – censure;
withholding of his promotion;
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 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.
withholding of increments of pay;
Note 23 (a) of Rule 11 also deals with the general conditions of procedure to be adopted in case of imposition of penalty for
recovery.
“23.Imposition of the penalty of recovery:- (a) General conditions- In the case of proceedings relating to recovery of pecuniary losses caused to the government by negligence or breach of orders by a Government servant, the penalty of recovery can be imposed only when it is established that the Government servant was responsible for a particular act or acts of negligence or breach of orders or rules and that such negligence or breach caused the loss”.
11.While recognizing that orders of both the Disciplinary Authority and the Appellate Authority are well reasoned, it must be noted that none of them has attributed any act of commission or misconduct or misappropriation of public funds on the part of the applicant. The entire record of the case and the disciplinary proceedings shows that at the most the applicant could be considered guilty of lack oversight/omission or indifferent performance of duties. A bare reading of Rule 11 as quoted above and as interpreted in the various orders of several Benches of CAT and empathetically held by this Bench in its order referred to in para 11 unambiguously states that the penalty of recovery can be imposed only when it is established that the government servant was responsible for a particular act which caused the loss. In the instant matter the concerned public servant viz., the applicant was neither the custodian of the money nor responsible for its expenditure or otherwise. Therefore, the misappropriation or the loss cannot be directly attributed to him.
12.Since, the facts and circumstances of the present case are identical to the contents of OA No. 330/01525/2014 and the order passed on it on 06th October 2016 as also decision of different Benches of Central Administrative Tribunal referred to earlier, there do not appear any grounds or reasons to depart from the course already well-established.
13.Further in another similar matter identical views was held by the Tribunal while rendering judgment in OA No. 1537 of 2014. In this case too the Tribunal has held that mere lack of oversight and supervision at the most amount to an act of omission; it certainly does not establish that the employee is guilty of any financial misconduct. Accordingly, in that case too the order of minor penalty was set aside.
14.In view of facts and circumstances detailed above, especially in view of the pronouncements of this very Bench of the Tribunal as referred to in this judgment, we have no hesitation in allowing this OA to the extent that the order of penalty is partially set aside. While we are not interfering in the penalty of stoppage of one increment without cumulative effect, we hereby quash the penalty of recovery of Rs.291536/- imposed upon the applicant.
15.The original application is allowed with the aforesaid directions. No order as to costs”.
Relying upon the dictum of the Tribunal passed in Ram Palat Ram (supra) case, this Tribunal on 10.05.2022 has also quashed and set aside the penalty of recovery in Ram Palat Ram (supra) case on the ground that mere lack of oversight and supervision at the most amount to an omission which cannot be attributed to the financial misconduct. Thus, Tribunal observed that omission occurred on part of the applicant does not attract to impose penalty of recovery because he was not directly responsible for the loss said to have been caused to the Government.
In the present matter, if the respondents have passed an order dated 29.11.2014 holding Shri Raj Kumar, BPM responsible for the loss caused to the Government, therefore, for the same very loss, the applicant cannot be held responsible and recovery cannot be made. It is also admitted fact that applicant was not directly responsible for loss said to have been caused to the Government, Shri Raj Kumar, BPM has been punished for the loss occurred to the Government. If for the sake of argument, respondents’ plea is taken into consideration then also respondents’ plea was regarding inspection and supervision. As has been held in Ram Palat Ram (supra) case, mere lack of oversight and supervision on part of the applicant will not attract any direct responsibility regarding the loss said to have been occurred to the Government. If the responsibility bestow to the applicant is taken into consideration then also it does not establish that the applicant is guilty of any financial misconduct. Thus, applicant’s case being identical to the case laws relied upon by the applicant {Ram Palat Ram (supra), Ram Bipat Yadav (supra), Rama Shakar Yadav(supra) and Daya Shankar Ram (supra)- }, we are of the view that punishment imposed by the Disciplinary Authority regarding recovery is not sustainable and is liable to be quashed.
In view of the facts and circumstances stated hereinabove, and in view of the pronouncements of the judgment passed by this Tribunal as referred to above, we have no hesitation in allowing this O.A. to the extent that the order of recovery is partially set aside. It is made clear that we are not interfering in the penalty of ‘censure’. We hereby quash the penalty of recovery of Rs. 6,13,360/- in 88 equal installment of Rs. 6970/-per month. Respondents are directed to refund the amount already recovered from the applicant within a period of 03 months. If any amount is still to be recovered, same shall not be recovered. No order as to costs. All associated MAs are disposed of.