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Judgment
O R D E R
Mr. Swarup Kumar Mishra, J.M.
The applicant, in this O.A., has sought for the following reliefs:
“(i)To admit this OA.
(ii)To quash the Charge Memo No. B1-176, dated 10.04.2019 (Annex. A/5).
(iii)To quash the order of punishment issued under Memo No. B1-176, dated 5.09.2019 (Annex.A/7) and order No. INV/51-52/2019, dated 19.03.2020 (Annex.A/10) holding the same are illegal and outcome of non-application of mind;
(iv)To direct the Respondents to extend the consequential benefits;
(v)To pass any other order/orders as deem fit and proper for the ends of justice.”
The brief facts of the case as adumbrated by the Ld. Counsel for the applicant are that the applicant was charge sheeted under Rule 16 of the CCS(CCA) Rules, 1965 vide charge memo dated 10.04.2019 (A/5) on the allegation that the applicant while working as Postmaster, Kendrapara HO under Cuttack North Division for the period from 01.03.2012 to 06.06.2014, allowed to remit cash through the hand of SPM and the O/S cash on different dates between 01.03.2012 to 28.07.2012 to Karilopatna SO without verifying the actual liabilities of the SO and cause of requirement of such huge cash at the SO, for which Sri Arun Kumar Mohanty, the then SPO, Karilopatna committed fraud to the extent of Rs. 8,41,500/-. Applicant submitted representation on 22.04.2019 asking for supply of certain documents but he was permitted to inspect few documents. On 24.08.2019 (Annexure-A/6 series), he submitted his reply to the charge memo inter alia stating that he was only confined to remittance adjustment and transit since the work of post office at the time was under meghdoot software. It is the case of the applicant that as per Memo of distribution of work issued by the Circle Office, supervision of sub office account and financing the same office has been specifically assigned to Asst. Postmaster (Mail) and all vouchers of SO will be verified and recorded by the Savings Bank Control Organization (SBCO) and there is no power with the HO to verify the daily accounts of the SO except receiving and transmitting the same to SBCO and any discrepancy or irregularity pointed out by the SBCO that has to be recorded in the Error Book and the same was to be brought to the notice of the ASPO/SPO for further action without any intimation to the HO. MIS closure amount has not been paid to the party directly rather, all the proceeds were transferred to the SB account and through voucher, amount has been withdrawn. Further, it is specific case of the applicant that after conviction and dismissal of the principal offender when the entire loss has been adjusted from his pay and allowances, there was no need for the department to proceed against him under rule 16 of the CCS(CCA) Rules for contributory negligence. However, DA, without taking into account the entire facts of the matter in its proper perspective and without considering the documents appended to in his reply, imposed punishment of recovery of Rs. 2,40,000/- from the salary of the applicant vide order dated 25.09.2019 (Annexure-A/7). On appeal, the Appellate Authority vide order dated 19.03.2020 (Annexure-A/10) modified the order of punishment of recovery of Rs. 2,40,000/-to Rs. 1,60,000/-.
Respondents have filed their counter contesting the case of applicant inter alia stating therein that the Head Office is the account office of a particular Sub Post Office and is directed involved in any transaction made by the sub post office with the head office like remittance of cash, daily accounts check, cash handling, liability checking etc. The applicant being the Postmaster of Kendrapada HO has failed to perform his assigned duty and for his failure, the SPM, Karilopatna SO committed huge fraud. The applicant joined as Postmaster in the month of October, 2018 and charge sheet was issued on 25.09.2019 and, thus, the allegation of the applicant that the proceedings were initiated after seven years of alleged occurrence is false. As the immediate supervising officer, it was the bounden duty of the applicant to make proper supervision in adherence to the rules and guidelines issued in this regard but the applicant is trying to divert the attention of his wrong doings by stating many things which is neither here nor there. There is no provision that in Rule 16 proceedings the charge sheet must be accompanied by the documents and the list of witnesses. On the request of the applicant, he was allowed to peruse the documents which were relevant and all the available documents considered relevant to the matter were supplied to the applicant for perusal. The daily account of the SPO was already ceased by the CBI. The applicant has unnecessarily showing the finger towards the Asst. Postmaster (Mail) although it is his primary duty to verify at the time of transit adjustment that whether cash remitted to any sub post office is justified or not. The work of APM(Mail) has to be supervised by the Post master in every step. Therefore, viewed the matter from any angle, the applicant was solely responsible but he failed to discharge his duties thereby enabling the SPM to defraud the department. The applicant in his capacity has committed grave misconduct by handing over cash to the SPM, Karilopatna SO thereby facilitating him to commit huge fraud to the tune of Rs. 8,41,500/-. He ought to have checked the liabilities before remitting the cash to the SPM, Karilopatna SO but he failed to do so. It has further been submitted that the decision of this Tribunal in the Khageswar Mohanta and UOI & Ors. (OA No. 105/2015) relied on by the applicant has no universal application to each case as the said decision was rendered taking into consideration the factual matrix involved in that case.
Applicant has filed rejoinder wherein besides reiterating some of the facts stated in the OA has submitted that as the loss sustained by the department has already been recovered from the delinquent fully and he has already been convicted by the CBI Court as he is solely responsible for committing that fraud and misappropriation of public money. Therefore, recovery from the applicant as subsidiary offender is bad in law. According to the applicant, in terms of P&T Manual Vol-VII, Part-III, Chapter-10, the APM (Mails) is also responsible but no action was taken against him. It has been submitted that if at all there was any direct relationship between the applicant and the person committed fraud, then in such a situation Rule 14 proceeding ought to have been initiated and the applicant could have been tried from criminal angle instead of imposing punishment of recovery by initiating proceeding under Rule 16 of CCS(CCA) Rules, 1965. Accordingly, applicant has prayed for the relief claimed in the O.A.
The main contention of Ld. Counsel for the respondents is that imposition of punishment of recovery as a subsidiary offender for contributory negligence for the fraud committed by the another employee, i.e. SPM, is not sustainable as held by this Tribunal in Khageswar Mohanta Vs. UOI& ors. (OA 105/2015), Mohan Sunder Saha Vs. UOI & Ors. (OA 642/2017) in Radhakrushan Sahoo Vs. UOI & Ors (OA 13/2017). Hence, the present case being one and the same, both on facts and law, the impugned order is liable to be quashed. On the other hand, Ld. Counsel appearing for the respondents opposed the stand taken by the applicant by reiterating the points raised in the counter as noted above and has prayed for dismissal of this O.A.
Considered the rival submission of the parties and perused the pleadings and documents placed in support thereof so also gone through the decisions referred to above.
The charge memo issued to the applicant clearly reflects as under:
“The above action of Sri Pattnaik clearly establish his lack of supervision for his subordinates and thereby he contributed a lot and liable of pecuniary liability as envisaged in Rule-3(b) of Appendix-4 of FHB Vol-I and thereby it is held that he is entirely responsible for the loss sustained from the Govt. Exchequer. Thus, he is held personally responsible for the loss sustained by the Government through this fraud or negligence on his part as per Rule-37 of GRF revised upto 2017. xxx xxx xxx
Therefore it is imputed that said Sri Bijay Ketan Pattanik by his above action failed to maintain absolute integrity, due devotion to duty and failed to perform and discharge his duties with the highest degree of professionalism and dedication in contravention of provisions as enjoined in Rule-3(1)(i)(ii) and (xxi) of CCS (Conduct) Rule-1964. ”
Ld. Counsel for the applicant submitted that having noticed some foul play on the part of the SPM, Karilopatna & BPM, Purusottampur and anticipating any future problems, the applicant had entered his objection in the Error Book and had sent it for further action by the competent authority and, hence, the applicant cannot be alleged for contributory negligence. This Tribunal in OA 105/2015 (Khageswar Mohanta Vs. UOI & Ors disposed of on 28.06.2017) has also directed that no recovery from the salary can be made or be fixed by the DA alleging contributory negligence of a supervising authority as against the pecuniary loss caused due to any misappropriation or otherwise.
It is the specific case of the applicant that disciplinary proceedings initiated against the applicant is based on no evidence, the Disciplinary Authority imposed the punishment without due application of mind and that the Appellate Authority upheld the order of the Disciplinary Authority without giving due/proper consideration to the true fact of the matter as the applicant had discharged his onerous duty with due devotion and he had also entered his objection in the Error Book.
On the other hand, Ld. Counsel appearing for the respondents submitted that charge sheet under Rule 16 of the CCS(CCA) Rules, 1965 vide charge memo dated 10.04.2019 was served on the applicant for his omission and commission in discharging duties with due diligence. Further, the applicant had never demanded for regular inquiry. He submitted reply to the charge sheet and the Disciplinary Authority took note of the same and in a reasoned order held the applicant guilty and imposed the punishment which was also upheld by the Appellate Authority.
It is seen that the applicant has been charge sheeted under Rule 16 of the CCS(CCA) Rules, 1965 not for committing any fraud or misappropriation by himself but on the allegation that because of his supervisory lapses, another person defrauded the government. It is the specific case of the applicant that the Disciplinary Authority imposed the punishment without any evidence and had the Disciplinary Authority considered all the points raised by him in his defence, the Disciplinary Authority would not have come to such a conclusion. Be that as it may, the Hon’ble Supreme Court while dealing with a matter of Rule 16 of CCS (CCA) Rules, 1965 in the case of O.K.Bhardwaj Vs. UOI & Ors., 2002 SCC(L&S) 188, was pleased to hold as under:
“Even in the case of a minor penalty an opportunity has to be given to the delinquent employee to have his say or to file his explanation with respect to the charges against him. Moreover, if the charges are factual and if they are denied by the delinquent employee, an enquiry should also be called for. This is the minimum requirement of the principle of natural justice and the said requirement cannot be dispensed with”
Ld. Counsel for the applicant has placed reliance on the decision of the Hon’ble Apex Court in the case of Allahabad Bank & Ors. Vs. Krishna Narayan Tewari (AIR 2017 SC 330) to substantiate that since there was no loss to the government as the loss caused has already been made good from the principal offender and imposition of punishment cannot sustain even on holding disciplinary proceedings in the manner provided in the CCS(CCA) Rules. It cannot be said that this is a case where the applicant is to be visited with any punishment. Relevant portion of the decision in Allahabad Bank & Ors. Vs. Krishna Narayan Tewari (supra) is extracted herein below:
“We have given our anxious consideration to the submissions at the bar. It is true that a writ court is very slow in interfering with the findings of facts recorded by a Departmental Authority on the basis of evidence available on record. But it is equally true that in a case where the Disciplinary Authority records a finding that is unsupported by any evidence whatsoever or a finding which no reasonable person could have arrived at, the writ court would be justified if not duty bound to examine the matter and grant relief in appropriate cases. The writ court will certainly interfere with disciplinary enquiry or the resultant orders passed by the competent authority on that basis if the enquiry itself was vitiated on account of violation of principles of natural justice, as is alleged to be the position in the present case. Non-application of mind by the Enquiry Officer or the Disciplinary Authority, non-recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the orders of punishment. The High Court has, in the case at hand, found all these infirmities in the order passed by the Disciplinary Authority and the Appellate Authority. The respondent’s case that the enquiry was conducted without giving a fair and reasonable opportunity for leading evidence in defense has not been effectively rebutted by the appellant. More importantly the Disciplinary Authority does not appear to have properly appreciated the evidence nor recorded reasons in support of his conclusion. To add insult to injury the Appellate Authority instead of recording its own reasons and independently appreciating the material on record, simply reproduced the findings of the Disciplinary Authority. All told the Enquiry Officer, the Disciplinary Authority and the Appellate Authority have faltered in the discharge of their duties resulting in miscarriage of justice. The High Court was in that view right in interfering with the orders passed by the Disciplinary Authority and the Appellate Authority.
8.There is no quarrel with the proposition that in cases where the High Court finds the enquiry to be deficient either procedurally or otherwise the proper course always is to remand the matter back to the concerned authority to redo the same afresh. That course could have been followed even in the present case. The matter could be remanded back to the Disciplinary Authority or to the Enquiry Officer for a proper enquiry and a fresh report and order. But that course may not have been the only course open in a given situation. There may be situations where because of a long time lag or such other supervening circumstances the writ court considers it unfair, harsh or otherwise unnecessary to direct a fresh enquiry or fresh order by the competent authority. That is precisely what the High Court has done in the case at hand. The High Court has taken note of the fact that the respondent had been placed under suspension in the year 2004 and dismissed in the year 2005. The dismissal order was challenged in the High Court in the year 2006 but the writ petition remained pending in the High Court for nearly seven years till 2013. During the intervening period the respondent superannuated on 30th November, 2011. Not only that he had suffered a heart attack and a stroke that has rendered him physically disabled and confined to bed. The respondent may by now have turned 65 years of age. Any remand either to the Enquiry Officer for a fresh enquiry or to the Disciplinary Authority for a fresh order or even to the Appellate Authority would thus be very harsh and would practically deny to the respondent any relief whatsoever. Superadded to all this is the fact that the High Court has found, that there was no allegation nor any evidence to show the extent of loss, if any, suffered by the bank on account of the alleged misconduct of the respondent. The discretion vested in the High Court in not remanding the matter back was, therefore, properly exercised.
9.The next question is whether the respondent would be entitled to claim arrears of salary as part of service/retiral benefits in full or part. The High Court has been rather ambivalent in that regard. We say so because while the High Court has directed release of service/retiral benefits, it is not clear whether the same would include salary for the period between the date of removal and the date of superannuation. Taking a liberal view of the matter, we assume that the High Court’s direction for release of service benefits would include the release of his salaries also for the period mentioned above. We are, however, of the opinion that while proceedings need not be remanded for a fresh start from the beginning, grant of full salary for the period between the date of dismissal and the date of superannuation would not also be justified. We, therefore, allow this appeal but only in part and to the extent that while orders passed by the Disciplinary Authority and the Appellate Authority shall stand quashed, and the respondent entitled to continuity of service till the date of his superannuation with all service benefits on that basis, he shall be entitled to only 50% of the salary for the period between the date of his removal from service till the date of superannuation. Retiral benefits shall also be released in his favour. The order passed by the High Court shall, to the extent indicated above, stand modified. The parties shall bear their own costs.”
It cannot be disputed that the allegation against the applicant is factual which was also denied by the applicant in his defence before the Disciplinary Authority and the Disciplinary Authority, in view of the law stated above, ought to have called for a regular inquiry instead of imposing the punishment without inquiry. Thus, this Tribunal is of the opinion that the punishment imposed by the Disciplinary Authority which was upheld by the Appellate Authority is in violation of the principle of natural justice and law discussed above. In similar matters, this Tribunal in O.A. 103/2015, (Khageswar Mohanta Vs UOI & Ors) disposed of on 28.06.2017 and O.A. No. 260/00338 of 2018 (Manmohan Mohapatra) decided on 25.05.2022 quashed the punishment imposed on the said applicants for the offence committed by another employee. Hence, in view of the earlier decision of this Tribunal and keeping in mind the law laid down by the Hon’ble Apex Court referred to above, this Tribunal is of the view that the impugned orders of the Disciplinary Authority and Appellate Authority are not sustainable in the eyes of law.
In view of the peculiar facts and circumstances of the case, the order of punishment vide Memo No. B1-176, dated 5.09.2019 (Annex.A/7), which was upheld vide order No. INV/51-52/2019, dated 19.03.2020 (Annex.A/10) are hereby quashed and, as a consequence, the respondents are directed to refund the already recovered amount, if any made from the applicant, within a period of 90 days from the date of receipt of a copy of this order.
In the result, the O.A. stands allowed by leaving the parties to bear their own costs.