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Judgment
O R D E R
Per:-Kumar Rajesh Chandra, Member (A)
The present O.A. has been filed by the applicant seeking the following reliefs:-
“A. Memo No.: F1/Bhagwanpur/2017/Disc-2 Dated at Hajipur, the 31.03.2018 issued by Superintendent of Post Offices, Vaishali Division Hajipur as contained in Annexure A/1, may be quashed and set aside, whereby the applicant has been imposed punishment of recovery of Rs. 10,42,031/-in 48 installments from his salary from April 2018 and withholding of his next increment for one year without cumulative effect.
B. Memo No. Staff/RP-09/Appeal/ U.P. Singh / 2018 dated 24/05/2018, as contained in Annexure-A/2, issued by Appellate Authority, the Director Postal Services (HQ), O/o Chief Postmaster General, Bihar Circle Patna,whereby the appeal of applicant dated 06.04.2018 has been rejected, may be quashed and set aside.
C. The recovered amount from the salary of applicant may be directed to be refunded along with admissible interest thereupon.
D. Any other Relief Reliefs, the applicant is entitled and Your Lordship may deem fit and proper in the ends of justice.”
The brief facts of the case as stated by the applicant in this O.A.are discussed and delineated as follows:-
The applicant is working as a Postal Assistant at Sarai Sub Post Office under Vaishali Postal Division, Hajipur. He has challenged the order dated 31.03.2018 passed by the Disciplinary Authority, whereby recovery of ₹10,42,031/- was ordered from his salary in 48 installments and his next increment was withheld for one year without cumulative effect. His departmental appeal dated 06.04.2018 was subsequently rejected by the Appellate Authority vide order dated 24.05.2018.
The applicant while working at Sarai Bazar Sub Post Office, was deputed to Bhagwanpur Sub Post Office from 26.05.2017 to 20.08.2017, where Sri Satish Kumar Singh was functioning as Postmaster. According to the applicant, the said Postmaster was allowing a private person, namely Raushan Kumar, to use departmental systems by sharing his password for dealing with confidential and financial matters. The applicant claims that he reported this irregularity to the departmental authorities and also filed Informatory Petition No. 3376 of 2017 before the learned CJM, Vaishali, Hajipur.
It has been further stated that a large-scale financial fraud involving alleged embezzlement of ₹92,75,344/- came to light at Bhagwanpur Sub Post Office, resulting in registration of an FIR on 17.01.2018and applicant was subjected to minor penalty proceedings under Rule 16 of the CCS (CCA) Rules, 1965. It is contended by the applicant that the charge memo is merely alleged Patna violation of Rule 3(1)(i), (ii) and (iii) of the CCS (Conduct) Rules, 1964, without alleging any dishonest intention, embezzlement or misappropriation of money on his part.
Central Administrative Tribunal2.4The applicant argued that the Disciplinary Authority travelled beyond the charges while imposing the penalty as there was no specific charge of embezzlement or misappropriation against him, the order directing recovery of ₹10,42,031/- from his salary was impermissible and also contended that the punishment is excessive and disproportionate.
It is also contended by the applicant that a major penalty charge memo issued against Sri Satish Kumar Singh, the Postmaster of Bhagwanpur Sub Post Office, wherein allegations relating to embezzlement and sharing of password with Raushan Kumar were specifically made. Therefore, he was not responsible for the financial loss.Reliance has also been placed by the applicant on the decisions of the Tribunal and the Hon’ble Patna High Court and contended that recovery cannot ordinarily be ordered unless there is a finding establishing the employee’s responsibility for defalcation or misappropriation and that due procedure and principles of natural justice must be followed.
It has also been submitted by the applicant that, despite filing his appeal and a separate application seeking stay of recovery, more than ₹21,000/- was recovered from his salary, causing serious financial hardship to him and his dependents. He thereafter Patna approached the Tribunal in O.A. No. 050/00415/2018 and heard on the point of interim relief, which was disposed of by the Tribunal on 30.05.2018 whereby recovery was directed to be kept in abeyance. It has also been submitted that the Appellate Authority had already rejected his appeal on 24.05.2018, though this fact was not brought to the Tribunal’s notice at the relevant stage and the order of rejection was also not served upon him. Aggrieved by the rejection of his appeal,the applicant has approached the Tribunal seeking appropriate relief against the disciplinary and appellate orders.
The respondents have filed their written statement and have taken the following points:-
It has been submitted by the respondents that as per the enquiry team report dated 23.11.2017, the applicant, Shri Umesh Prasad Singh, was identified as a co-offender in the fraud and loss case relating to Bhagwanpur Sub Post Office. Accordingly, he was proceeded under Rule 16 of the CCS (CCA) Rules, 1965, vide memorandum dated 02.02.2018. The respondents contended that during the relevant period from 26.05.2017 to 20.08.2017, the applicant was working as Postal Assistant/Sub Postmaster at Bhagwanpur S.O. and was responsible for certain amounts which were not credited or were short credited to the Government account.
According to the respondents, on different dates, namely Patna 30.05.2017, 03.06.2017, 13.07.2017 and 03.08.2017, amounts of ₹4,50,000/-, ₹4,74,122/-, ₹3,39,000/- and ₹4,95,000/- respectively were not credited or were short credited, totaling ₹17,58,122/-. It has been stated by the respondents that an FIR was lodged in connection with the Bhagwanpur fraud case against the applicant where he figures as a named accused no.7 in the F.I.R. along with others. The total loss involved in the case is stated to be ₹92,75,344/-.
The respondents specifically denied the applicant’s contention that the charge against him was vague or cryptic. It has been submitted by the respondents that the charge memo clearly alleged that, while functioning as SPM/PA at Bhagwanpur S.O.,during the period from 26.05.2017 to 20.08.2017, the applicant had shared his password with an unauthorised person, namely Raushan Kumar alias Bhola Sah. It is also contended that on 03.08.2017 the applicant performed the duties of Sub Postmaster in addition to his own duties and also utilised the services of the said unauthorised person in both capacities. According to the respondents, the sharing of the password and the applicant’s conduct constituted serious lapses and indicated that he had failed to discharge his duties properly.
The respondents also contended that the applicant was responsible for maintaining the confidentiality and security of his password and ought not to have shared it with any other person, Patna particularly an unauthorised individual. The applicant’s appeal was duly considered by the Disciplinary Authority but the pleas raised therein were found neither tenable nor sustainable. In view of the seriousness of the lapses attributed to the applicant and his identification as a co-offender in the fraud case, the Disciplinary Authority imposed the penalty vide order dated 31.03.2018. It has been submitted by the respondents that the punishment was imposed in accordance with the applicable departmental rules and on justified grounds.The appeal of the applicant was duly considered and rejected vide order dated 24.05.2018. There was no violation of the applicable rules or law on the part of the Disciplinary Authority or the Appellate Authority. According to the respondents, the allegations contained in the charge memo were sufficiently specific and the applicant’s assertion that the authorities travelled beyond the charges is not acceptable.
It has further been submitted by the respondents that punishment imposed upon the applicant was justified and in accordance with the departmental rules and prayed that the Original Application be dismissed, as being devoid of merit.
I have heard the arguments of the learned Counsels for both the applicant and the Respondents and perused the material available on record. I have considered the matter in its entirety and arrived at the following conclusion:
Patna 4.1 The principal questions which arise for consideration are:
The applicant has assailed the punishment order that was inflicted on him leading to penalty of recovery of ₹10,42,031/-, along with withholding of increment for one year without cumulative effect. The issue is whether the disciplinary action leading to this impugned order suffers from violation of the statutory procedure or principles of natural justiceand travels beyond the substance of the charge communicated to him?
Whether the findings recorded against the applicant by the appellate authority suffers from any legal/procedural infirmity?
Whether the penalty of recovery of ₹10,42,031/-, in the facts and circumstances of the case, is without a legally sustainable nexus with the misconduct attributed to the applicant or is otherwise so disproportionate as to warrant interference by this Tribunal?
The applicant was working as Postal Assistant at Sarai Sub Post Office and was deputed to Bhagwanpur Sub Post Office from 26.05.2017 to 20.08.2017. During the relevant period, he was also required to discharge the duties of Sub Postmaster on 03.08.2017. A financial irregularity/fraud at Bhagwanpur Sub Post Office subsequently came to light. The respondents state that the total financial loss involved in the matter was ₹92,75,344/-. An FIR was registered on 17.01.2018 and departmental action was initiated against various officials including the applicant in both the F.I.R. (the applicant was F.I.R. named accused no.7) as well as departmental proceeding. Bench The applicant was proceeded against under Rule 16 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The substance of the allegation against him was that, while Central Administrative Tribunalfunctioning as PA/SPM at Bhagwanpur S.O., he failed to maintain the secrecy and security of his departmental password and shared the same with an unauthorised person, namely Raushan Kumar alias Bhola Sah, and that during the relevant period there were instances of non-credit/short-credit of Government money. It was further alleged that on 03.08.2017, while discharging the duties of SPM in addition to his own duties, he utilised the services of the said unauthorised person.
The respondents have specifically referred to four transactions dated 30.05.2017, 03.06.2017, 13.07.2017 and 03.08.2017 involving ₹4,50,000/-, ₹4,74,122/-, ₹3,39,000/- and ₹4,95,000/- respectively, aggregating to ₹17,58,122/-, which, according to the respondents, were not credited or were short credited to the Government account. Therefore, the charges are clear and specific.
The applicant submitted his defence denying the allegations and, inter alia, contended that he had not committed any embezzlement or misappropriation; that the Postmaster, Shri Satish Kumar Singh, was permitting an unauthorised private person to use departmental systems; that the applicant had himself reported the irregularities; and that major penalty proceedings had separately been initiated against the said Postmaster. But in the same defence Bench statement he has admitted that “……Since, I was making entry of my password slowly because I am not smart in computer devices, Bhola Sah perhaps peeped and hijacked my password….” Central Administrative TribunalThe Disciplinary Authority, after considering the material available in the disciplinary proceedings and the applicant's defence, imposed the penalty referred to above.
This punishment is parts of one punishment only as is evident from a perusal of Rule 11(iii) of the CCS (CCA) Rules that is being reproduced as under:
(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 lower stage in the time-scale of pay by one stage for a period notexceeding three years, without cumulative effect and not adversely affecting his pension.
Therefore, it is an established fact that under Rule 11(iii)of CCS (CCA) Rules it is possible to inflict the punishment of recovery of money along with the penalty of forfeiture of increment and there is a Government of India decision in this regard.The respondents, have not rested their case merely upon the FIR. Their case is that the applicant was functioning as PA/SPM during the relevant period, was responsible for safeguarding his departmental credentials, shared his password with an unauthorised person and, in that setting, specific transactions involving substantial sums were not credited or were short credited to Government account. The question, therefore, is not whether the applicant was the principal perpetrator of the entire Bhagwanpur fraud.
The applicant preferred a departmental appeal, which was Bench rejected by the Appellate Authority vide order dated 24.05.2018.
The record, as placed before the Tribunal, shows that the applicant was afforded an opportunity to appeal against the order of Central Administrative Tribunalthe disciplinary authority. He thereafter exercised the statutory right of appeal, and his appeal was considered by the competent Appellate Authority.An appellate authority is required to consider the material grounds and reflect his application of mind. The applicant has not demonstrated that the appellate authority acted without jurisdiction, ignored a material ground going to the root of the matter, or mechanically rejected the appeal without consideration. Hence, there has been no violation of the principle of natural justice.
The imposition of penalty of recovery is guided by the CCS (CCA) Rules, and P&T Manual and Rule that prescribes the general conditions for the same. The relevant part is being reproduced as under:
“ (12) Imposition of the penalty of recovery- (a) General Conditions – Inthe 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. In the case of loss caused to the Government, the competent disciplinary authority should correctly assess in a realistic manner the contributory negligence on the part of an officer, and while determining any omission or lapses on the part of an officer, the bearing of such lapses on the loss considered and the extenuating circumstances in which the duties were performed by the officer, shall be given due weight.”
The above provision makes it clear that the competent Bench disciplinary authority should correctly assess the contributory negligence.
In the instant case, the methodology adopted by the Central Administrative Tribunaldisciplinary authority to arrive at such an amount of recovery from the applicant appears to be based on accurate calculation as is evident from Annexure R-1 kept with the written statement of the Respondents where the name of the applicant and the contributory loss caused by him has been reflected at serial no. 21, 22 & 23 along with the name of Satish Kumar Singh, thereby arriving at the total amount of recovery that has been ordered from the applicant as part of the penalty.Hence, on the material considered by the disciplinary authority, applicant’s own proved misconduct had a sufficient factual nexus with the particular loss for which recovery of ₹10,42,031/- was imposed.
The applicant's contention that no charge of embezzlement or misappropriation was framed against him requires consideration. The charge memo mentions the expression “facilitated a fraud”. He was given specific charge leveled against him and was afforded the opportunity to defend himself before the final order.
In the present case, the substance of the allegation communicated to the applicant concerned failure to maintain the confidentiality and security of his departmental password, sharing it with an unauthorised person and the consequent irregularities occurring during the period when he was functioning at Bench Bhagwanpur S.O., including while discharging the duties of SPM.The consideration of the financial consequences of that alleged lapse, therefore, cannot by itself be regarded as introduction Central Administrative Tribunalof an altogether new charge, provided—and this is material—the finding regarding the applicant's responsibility for the particular financial loss is founded upon the material forming part of the disciplinary record and not merely upon the fact that a fraud occurred in the office.
On examination of the disciplinary decision as a whole, this Tribunal finds that the disciplinary authority did not treat the applicant as liable merely because he happened to be posted at Bhagwanpur. The penalty was founded upon the specific lapse attributed to him concerning the use and disclosure of his departmental credentials and his conduct while discharging the duties attached to the post, coupled with the financial irregularities occurring in the relevant transactions.
The disciplinary authority is the primary fact-finding authority in such proceedings. Unless the material relied upon is shown to be wholly incapable of supporting the conclusion reached, this Tribunal cannot substitute its own assessment of that material. The applicant has not demonstrated that the finding connecting his misconduct with the loss for which recovery was ordered is based on no material whatsoever. Nor has he demonstrated that the disciplinary authority relied upon a fact which was never put to him and upon which he had no opportunity to respond. The applicant has not demonstrated any Bench particular procedural requirement which was mandatory in the facts of the present case and which was violated to his prejudice. Mere disagreement with the conclusions reached by the disciplinary authority cannot be Central Administrative Tribunalequated with denial of reasonable opportunity. The mere fact that another official, particularly the then Postmaster, may have had a more substantial role in the overall fraud does not erase the applicant's independent departmental responsibility for his own misconduct. Disciplinary liability is personal and must be determined with reference to the misconduct attributable to the particular employee. The fact that major penalty proceedings were initiated against Shri Satish Kumar Singh is therefore not, by itself, determinative of the applicant's liability. There can be simultaneous or overlapping departmental responsibility of more than one employee arising from different acts or omissions. In the present case, the misconduct attributed to the applicant concerns the handling of Government financial operations and the security of departmental credentials. The consequences alleged by the respondents are financial in nature and substantial. The penalty imposed is therefore bearing nexus to the nature of the misconduct. On the material available before this Tribunal, no perversity or manifest arbitrariness in that assessment has been established. The applicant's name having figured in the FIR has been noticed only as a matter of background. The Tribunal makes it clear that the mere registration of an FIR or the fact that the applicant has been named as an accused is not treated as proof of departmental misconduct which has Bench been proved in the instant case independently. The departmental action has to stand on the material available in the departmental proceedings. The validity of the impugned orders has Central Administrative Tribunalaccordingly been examined independently of the criminal accusation. The interim order dated 30.05.2018 passed in O.A. No. 050/00415/2018 keeping recovery in abeyance was an interlocutory order intended to preserve the position during pendency of the proceedings. Such an order neither constitutes a finding on the merits nor creates an independent substantive right in favour of the applicant. Now, with this final order interim order stands vacated. The Tribunal does not sit as an appellate authority over the findings of the disciplinary authority. It does not ordinarily re-appreciate evidence or substitute its own conclusion merely because another view is possible. On a cumulative consideration of the matter, this Tribunal finds that the applicant has failed to establish:
violation of the mandatory procedure governing the disciplinary proceedings;
denial of reasonable opportunity of defence;
a finding based on no evidence or on irrelevant considerations;
failure of the disciplinary authority to consider the applicant's defence in a manner going to the root of the decision; or
punishment so disproportionate to the proved misconduct as to warrant interference in judicial review.
The conclusion rests upon the specific misconduct attributed to Bench him, the material considered in the departmental proceedings and the finding of responsibility recorded by the competent disciplinary authority. Consequently, no ground has been made out for interference with Central Administrative Tribunalthe impugned disciplinary order dated 31.03.2018 or the appellate order dated 24.05.2018.
The Original Application is accordingly dismissed.
There shall be no order as to costs.
All pending M.A.s, if any, stand disposed of accordingly.