Manjula Das, Judicial Member:
1. By this O.A., applicant makes a prayer for setting aside the penalty order dated 14.06.2012 as well as appellate authority’s order dated 29.01.2013.
2. Mr. H.K. Das, learned counsel appearing on behalf of the applicant submitted that applicant is presently working as Assistant Administrative Officer (Ad hoc) in the office of National Institute of Public Co-operation & Child Development (NIPCCD in short), Regional Centre, Jawaharnagar, Khanapara, Guwahati. A disciplinary proceeding was initiated against the applicant vide memorandum of charge dated 15.09.2011. After conducting the enquiry, the Disciplinary Authority imposed penalty vide order dated 14.06.2012 by withholding of one increment of pay due on 01.07.2012 for a period of one year w.e.f. 01.07.2012 without cumulative effect. Applicant did make appeal dated 06.11.2012 before the appellate authority which was rejected vide order dated 29.01.2013.
3. Mr. Das submitted that the charges leveled against the applicant are for claiming of the reimbursement of Children Education Allowance. According to learned counsel, at the time of submission of reimbursement form, inadvertently applicant annexed one receipt which was not related to the educational reimbursement. However, subsequently, the amount has been refunded by the applicant to the department authority which was also accepted by the department.
Learned counsel fairly submitted that mistake occurred inadvertently and there is no misconduct and the department has also accepted the refunded money. As such, the action of the respondent authority for initiation of disciplinary proceeding as well as for imposition of penalty is not sustainable under the law.
4. Mr. M.U. Ahmed, learned counsel appearing on behalf of the respondents submitted that applicant preferred a claim dated 7th March 2011 for reimbursement of Children Education Allowance in respect of his daughter Ms. Shreya Sarkar which included a claim of Rs. 1220/- on account of purchase of school shoes. In support of his claim, he enclosed a cash memo dated 19.10.10 of Rs. 1220/- of M/S Namita Shoe Store, Beltola Bazar, Guwahati. According to learned counsel, during routine check, Shri R.J. Baruah, Section Officer (Acctts.), NIPCCD, Regional Centre, Guwahati noticed that the figure '1' in the cash memo was different from other figures.
5. Mr. Ahmed further submitted that in order to check the genuineness of the claim, Shri R.J. Baruah, Section Officer (Accts.), vide letter dated 25.03.2011 made an enqui. Ahmed further submitted that in order to check the genuineness of the claim, Shri R.J. Baruah, Section Officer (Acctts.), vide letter dated 25.03.2011 made an enquiry with due permission from authority from shop from where Shri K.P. Sarkar, Asstt. Admn. Officer purchased the shoe. The shop owner of M/S Namita Shoe Store, Beltola Bazar, Guwahati in his reply informed that the Cash Memo which was issued against the sale of shoe for Rs. 220/- only and not for Rs. 1220/-. According to Mr. Ahmed, due to Financial Year closing the reimbursement of Children Education Allowance was transferred to the individuals account on 29.03.2013. After that Shri R. J. Baruah, Section Officer (Acctts.) reported the matter to the Regional Director, NIPCCD, Regional Centre, Guwahati on 20.04.2011 with a copy of the same endorsed to Additional Director, NIPCCD, New Delhi where the Regional Director forwarded the report to the Director, NIPCCD, New Delhi on 21st April 2011.
6. It was submitted by Mr. Ahmed that after one week of reporting to the higher authority, applicant came to office on 28.04.2011 to deposit an amount of Rs. 1250/- but Regional Director did not receive the amount because the matter was already informed to the HQs. for their advice and balance sheet was prepared and submitted to HQs. Thereafter, applicant vide his letter dated 29th April 2011 by enclosing a bank demand draft being No. 089324 dated 28th April 2011 for Rs. 1250/- informed the Director that efforts were made to return excess amount of Rs. 1250/- to Regional Director, NIPCCD, Guwahati through cross cheque on 28.04.2011, but the cheque was returned with the following comment on the same letter –
'the cheque cannot be accepted now, as the payment is already made, balance sheet for 2010-11 is prepared and submitted to HQs.'
7. Learned counsel further submitted that the Joint Director (CS), NIPCCD, New Delhi through communication dated 27.05.2011 appointed Sri S.K. Tripathi, Deputy Director, NIPCCD, Bangalore as Inquiry Officer to conduct preliminary inquiry to alleged manipulation in reimbursement claim of Children Education Allowance by the applicant. Accordingly, Sri Tripathi has conducted the preliminary inquiry and submitted the report to the Director, NIPCCD, New Delhi on 23.06.2011. The disciplinary authority vide order dated 28.11.2011 appointed Sri B.C. Das, Retd. District and Session Judge as Inquiry Officer of the departmental inquiry of the case where the Inquiry Officer give his finding that both the Article of Charges are duly proved. Thereafter, the Director, NIPCCD, New Delhi, under Rule 15(3) of CCS (CCA) Rules, 1965 with Bye Law 32 of the Institute imposed minor penalty of withholding of one increment of pay due on 01.07.2012 for a period of one year w.e.f. 01.07.2012 without cumulative effect. According to Mr. Ahmed, the action taken by the appropriate authority is as per law.
8. We have heard the learned counsel, perused the pleadings, material placed on record and precedent relied upon. A disciplinary proceeding was initiated against the applicant vide memorandum of charge dated 15.09.2011 (on two Article of Charges) where the charges as per law are as follows:
1.1 That while functioning as Assistant Administrative Officer (adhoc) at the Regional Centre, Guwahati of National Institute of Public Cooperation and Child Development, Shri K.P. Sarkar, preferred a false and manipulated claim of Rs. 1220/- (Rupees One thousand two hundred twenty only) towards reimbursement of Children Education Allowance in respect of his daughter Ms. Shreya Sarkar.
1.2 By the aforesaid wilful and deliberate act Shri K.P. Sarkar as failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of an employee of the Institute thereby violating Rule 3(1)(i), (ii) and (iii) of the Central Civil Services (Classification Control and Appeal) Rules 1965 as extended to the employees of NIPCCD under Bye Lane 32 of the Bye Laws of NIPCCD, New Delhi.
2.1 That the said Shri K.P. Sarkar while functioning as Assistant Administrative Officer (adhoc) at the Regional Centre, Guwahati of National Institute of Public Cooperation and Child Development failed to maintain absolute integrity during the period March 2011 and preferred a false and manipulated claim of Rs. 1220/- (Rupees One thousand two hundred twenty only) for reimbursement of Children Education Allowances in respect of his daughter Ms. Shreya Sarkar for his lawful gain and thereby causing loss to the Institute for the aforesaid amount which was reimbursed to him. He manipulated and interpolated the bill of the shopkeeper from where shoes were purchased before submitting the same to the Regional Centre, Guwahati of the Institute.
2.2 By the aforesaid wilful and deliberate act Shri. K.P. Sarkar has acted in a manner which is unbecoming of an employee of the Institute thereby violating Rule 3(1)(iii) of the Central Civil Service (Conduct) Rules, 1964, thereby rendering himself liable for action under the Central Civil Services (Classification Control and Appeal) Rules 1965, as extended to the employees of NIPCCD under bye Law 32 of the Bye Laws of NIPCCD, New Delhi.'
Inquiry Officer was appointed vide order dated 28.11.2011 by the disciplinary authority. Thereafter, enquiry was held by the learned District and Session Judge Sri B.C. Das (Retd.) where the applicant did submit his statement of defence denying the all charges of misconduct leveled against him by stating that the charges are false, concocted and manipulated and he will defend himself at the time of inquiry proceedings. Thereafter, enquiry proceedings started where preliminary hearing was held on 30.12.2011 and the Inquiry Officer after hearing (detail inquiry) and perusing all the documents as well as statement of witnesses on examination came to a finding for article of charges as here under:
'I am therefore, left with no other alternative but to hold that Article I of charge is duly proved.'
'I, therefore, give my decision that charge in Article II is also duly proved.'
10. Enquiry report was prepared on 20.02.2012 and produced before the disciplinary authority. Thereafter, enquiry report was furnished to the applicant for submitting his representation if any, on the report of the enquiry. The applicant thereafter, vide representation dated 14.04.2012 (Annexure – 15 to the O.A.) represented into the enquiry report with a prayer to take a sympathetic view in the case and to exonerate him. Thereafter, the disciplinary authority as per Rule 15(3) of CCS (CCA) Rules, 1965 read with Bye law 32 of the Institute, vide order dated 14.06.2012 imposed a minor penalty of withholding of one increment of pay due on 01.07.2012 for a period of one year w.e.f. 01.07.2012 without cumulative effect. Applicant did appeal on 06.11.2012 before the respondent No. 1 against the said punishment where the appellate authority vide Memorandum dated 29.01.2013 rejected the appeal of the applicant with the observation that – 'the appeal has been submitted after expiry of the time allowed, it is devoid of any merit as there is nothing to show that the charges are not proved. So appeal is rejected on technical ground of being time – barred as well as also on merit.'
11. We scrutinized the relevant papers annexed where the applicant on 28.04.2011 submitted a letter to the respondent No. 3 by stating that due to insisting by his two daughters, he had to go to Shoe Shop i.e. M/s Namita Shoe Store and purchased two pair of extra shoes for them in addition to one pair of shoes worth Rs. 220/-. As we scrutinized properly, Annexure – 1 to the O.A. reveals Cash Memo of one Shoe store namely Namita Shoe Store, Beltola Bazar dated 19.10.2010 quantity of one shoe worth Rs. 1220/- and the Annexure – 2 to the written statement annexed by the respondents the copy of the duplicate Cash Memo of the same provided worth of Rs. 220/- for a pair shoes. It is also admitted by the applicant that on oversight, the Cash Memo dated 19.10.2010 worth Rs. 1220/- was furnished before the authority for reimbursement.
12. After exploration of the enquiry report and other relevant documents, we found that worth quantity of one pair of shoes as stated by the applicant on 28.11.2011 worth Rs. 1220/- is for extra two pair of shoes of both daughters
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. If so, 'instead of one that ought to have been three'. While the Inquiry Officer examined the witnesses, also look evidence of witness No. 2 i.e. Shri Babul Kr. Talukdar, the owner of M/S Namita Shoe Store where he specifically asserted that he had sold a pair of shoes at Rs. 220/- and issued the cash memo, Exhibit 7(i) with his signature thereon. He also testified that he made reply, Exhibit – 2 to Shri R. J. Baruah enclosing a photocopy of the duplicate cash memo Exhibit 3. 13. After taking into consideration the entire conspectus of the case as narrated above, we are of the view that the applicant purchased only one pair of shoes worth Rs. 220/- and he had added the figure '1' in the cash memo to show that he had purchased one pair of shoes for Rs. 1220/-. It also not proved that applicant did purchase three pairs of shoes or the owner of shop (M/S Namita Shoe Store) had himself corrected the cash memo. 14. Non convincing material has been placed to establish the case warranting merit. In our view, there is existence of smack of manipulation in his claim of reimbursement of Children Education Allowance. Thus, the O.A. fails and accordingly, the same is dismissed. No order as to costs.