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Judgment
ORDER
Per: Hon’ble Shri Umesh Gajankush, Member (J)
Brief facts necessary for the disposal of the present Original Application are as under:-
That the applicant herein was recruited as Postal Assistant in Amreli Postal Division from 13.07.1970 and was posted at Amreli Head post Office. He was transferred to Vadodara Postal Division in the year 1975. Thereafter, on bifurcation of Vadodara Postal Division, he was allocated to Vadodara West Division where he worked in different Post Offices till his retirement. Lastly, he worked as Sub-Postmaster, Chemical Industries Post Office, Vadodara, up to 31.01.2010 from where he retired on attaining the age of superannuation on 31.01.2010.
After his retirement, it was found that during the course of making entries of the list of Transactions (LoT) by SBCO staff of Fatehganj Head Office, double closure of 14 SCSS accounts were noticed, involving over payment of Rs.61,67,000/- + interest at Chemical Industries Post Office. The Senior Post Master, Fatehganj Head Office, reported the matter to SSPO, Vadodara West Division, vide his letter dated 31.08.2010. Thus, a fraud came into light. On further investigation, it was found that the total amount to the tune of Rs.11,15,03,210=10 was defrauded from SCSS, MIS, SB and RD category in Chemical Industries Post Office under vadodara West Division.
The applicant was found as the principal offender. Since the applicant had already retired on attaining the age of superannuation on 31.01.2010, departmental proceedings were initiated against him after obtaining the sanction accorded by the Hon’ble the President of India under sub-clause (i) of sub-rule 2 of Rule 9 of the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as “the CCS (Pension) Rules”) vide order dated 26.12.2011. The memorandum of Charge was issued to him by SSPO Vadodara on 21.02.2012. After inquiry the Inquiry Officer held all the charges leveled against the applicant proved. The applicant was served the Inquiry Report dated 03.10.2012, to which he submitted his representation on 31.10.2012. After considering the representation of the applicant against the Inquiry Report as well as considering the Inquiry Report, the disciplinary authority prepared its findings and submitted the proposal under Rule 9 to the next higher authority on 19.02.2013, for onward submission to Directorate, New Delhi, for further necessary action. Thereafter the applicant was provided with the copy of the advice of UPSC dated 09.06.2015, for submitting his representation. The applicant submitted his defense statement on 25.06.2015. After considering the findings recorded by the Inquiry Office, the advice of the UPSC and the representation of the applicant on UPSC advice, on 28.07.2015, Hon’ble the President of India ordered that 50 per cent of monthly pension otherwise admissible to the respondent be withheld for a period of seven years.
Feeling aggrieved and dissatisfied with the orders dated 28.07.2015 withholding 50 per cent of the pension otherwise admissible to him for a period of seven years, and the Chargesheet dated 21.02.2012, the applicant has preferred Original Application before this Tribunal at Ahmedabad, being O.A.345/2016. By its order dated 27.04.2017, this Tribunal quashed and set aside the communication dated 21.02.2012 as well as order dated 28.07.2015, and remanded the matter back to respondent no.2, i.e. Chief Postmaster General.
Feeling aggrieved and dissatisfied by the impugned order passed by this Tribunal, the applicant preferred the SCA under Articles 226 and 227 of the Constitution of India.
The Hon’ble High Court of Gujarat vide its order dated 11.04.2018 decided the aforesaid Special Civil Application with following observations/directions.
“In view of the above and for the reasons stated above, the petition succeeds. The impugned judgment and order passed by the learned Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad, dated 27.04.2017, in Original Application No.345/2016 is hereby quashed and set aside. The matter is remitted back to the learned Tribunal to decide and dispose of the said Original Application afresh. Rule is made absolute to the aforesaid extent. There shall be no order as to costs.”
After passing the order by the Hon’ble High Court, we have heard learned counsel for the parties.
After notice of Original Application, official respondents had filed their reply and justified their action in respect of impugned order and submitted that the Inquiry Officer had carried out the inquiry as per rules and procedure. The charged official was given all reasonable opportunity to defend his case. All charges against the applicant were held proved on the basis of documentary and oral evidence. On the basis of reply, the official respondents had prayed for dismissal of the Original Application.
Learned counsel for the applicant submitted that there was a serious procedural lapse during the inquiry proceeding and therefore impugned order deserved to be set aside. It was contended that defense brief was submitted by the applicant on 03.10.2012 and on the same day, Inquiry Officer prepared his report i.e. on 03.10.2012 which clearly demonstrated that the Inquiry Officer had not given due weightage to the averments of the applicant taken in the defense brief. On factual aspect also, in detailed written arguments, it was submitted that the applicant has wrongly and illegally being involved in so called fraud case only on assumptions and presumptions.
On the other hand, the learned counsel for the respondent while supporting the impugned order submitted that during the course of Inquiry, reasonable opportunity was provided to the applicant. Copy of Inquiry Report was supplied to which representation was submitted. Thereafter, opinion from UPSC was sought and only then, impugned punishment order was passed. There was no procedural irregularity or impropriety on the basis of which this Tribunal could interfere in the impugned order on its limited jurisdiction.
After hearing the learned counsel for the parties and perusal of the records, it is clear that charge memorandum dated 21.02.2012 was issued to the applicant in pursuance of the sanction accorded by the President of India under sub-clause (i) of clause-(b) of sub-rule 2 of Rule 9 of Central Civil Services (Pesnion) Rules, 1972.
Thereafter, Inquiry Officer and Presenting Officer were appointed and the inquiry was conducted. After completion of inquiry, report was submitted to the Disciplinary Authority who in turn sought UPSC’s opinion as per rules and thereafter impugned order dated 28.07.2015 (Annexure A/2) was passed. Looking at the facts on record, it is clear that there were no procedural lapses on the basis of which inquiry could be said to have been vitiated under law.
At this stage, it is relevant here to consider the argument raised by the applicant that looking at the Inquiry Report, it is clear that charged official that is applicant submitted his written brief on 03.10.2012 and on the same day i.e. on 03.10.2012 Inquiry Report prepared was sent. And therefore it can be presumed that Inquiry Officer has not applied his mind to the written brief submitted by the applicant and therefore, the inquiry is vitiated on this account. Notwithstanding the arguments raised by the applicant, a deeper scrutiny reveals that the same have no legal basis.
For the said purpose it is worthwhile to reproduce relevant Rule 14 sub-clause 18,19 &21.
“(18)The Inquiring Authority may, after the Government servant closes his case, and shall, if the Government servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him.
(19)The Inquiring Authority may, after the completion of the production of evidence, hear the Presenting Officer, if any, appointed and the Government servant, or permit them to file written briefs of their respective case, if they so desire.
21)(a) Where a Disciplinary Authority competent to impose any of the penalties specified in Clauses (i) to (iv) of Rule 11 [but not competent to impose any of the penalties specified in Clauses (v) to (ix) of Rule 11 ], has itself inquired into or caused to be inquired into the articles of any charge and that authority, having regard to its own findings or having regard to its decision on any of the findings of any Inquiring Authority appointed by it, is of the opinion that the penalties specified in Clauses (v) to (ix) of Rule 11 should be imposed on the Government servant, that authority shall forward the records of the inquiry to such Disciplinary Authority as is competent to impose the last mentioned penalties.
(b)The Disciplinary Authority to which the records are so forwarded may act on the evidence on the record or may, if it is of the opinion that further examination of any of the witnesses is necessary in the interests of justice, recall the witnesses and examine, cross- examine and re-examine the witnesses and may impose on the Government servant such penalty as it may deem fit in accordance with these rules.”
Looking at the aforesaid provisions it is clear that after completion of production of evidence, the Presenting Officer and the Government Servant are permitted to file written briefs of their respective case and therefore as per Rule 20 sub-clause (b) the Disciplinary Authority is to act upon the record so forwarded by the Inquiry Officer and in the present case, report clearly suggests that the procedure prescribed under Rule 19 & 20 (b) has been followed by the competent authority. Under these circumstances, the ground taken by the applicant is not tenable.
Thus, in view of the aforesaid discussion, the application fails and hereby dismissed without any order as to cost. Pending M.A. if any, shall also stands disposed of.