w w w . L a w y e r S e r v i c e s . i n

Mir Ruhul Amin Dewan v/s The Union of India, Represented by the Secretary, To the Government of India, Ministry of Communications & I T Department of Posts, New Delhi & Others

    Original Application No. 040/00325 of 2017

    Decided On, 05 May 2020

    At, Central Administrative Tribunal Guwahati Bench Guwahati


    For the Applicant: D.N. Sharma, Advocate. For the Respondents: R. Hazarika, Addl. CGSC.

Judgment Text

Nekkhomang Neihsial, Member (A).

1. This O.A. has been filed by the applicant seeking the following reliefs:-

“8.1 The Hon’ble Tribunal be pleased to direct the respondents to set aside the punishment orders of the Disciplinary Authority i.e. Respondent No. 5 for recovery of Rs. 2,50,000/- from the salary of the applicant by his order No. F4-2(b)/2011-12/R-16/R A Dewan dated 25.01.2017.

8.2 Costs of the application.

8.3 Any other relief (s) which the applicant is entitled to as the Hon’ble Tribunal may deem fit and proper.”

2. During the process of filing, a mistake was noticed at para 8 of prayer portion in the O.A. Accordingly, as permitted by this Tribunal, the applicant filed an amended O.A. seeking for the following reliefs:-

“8.1 For setting aside and quash the impugned charge sheet No. F4-2(b)/2011-112/R-16/R A Dewan dated 08.08.16 issued by Senior Superintendent of Post Offices, Darrang Division, Tezpur against the applicant.

8.2 For setting aside and quashing the impugned Memo of punishment order bearing No. F4- 2(b)/2011-112/R-16/R A Dewan dated 25.01.2017 issued by the Sr. Superintendent of Post Offices, Darrang Division, Tezpur imposing a penalty of recovery of Rs. 2, 50,000/- only @ Rs. 20,000/- per month commencing from the pay of January’ 17 to July’ 2017 and further ordered that the residual amount of Rs. 1,10,000/- only should be recovered from from the DCRG of Sri Ruhul Amin Dewan.

8.3 For setting aside and quashing the appellate order No. Staff/9-289/2017 dated 28.06.2017 issued by the Director of Postal Services, (HQ) O/o the Chief Post Master General, Assam Circle, Guwahati-781001 who disposed off the appeal without any modification in the order issued by the Disciplinary Authority.”

3. From the records and submissions made by the applicant, it is observed that the applicant was issued a Memorandum No. F4-2(b)/2011-112/R-16/R A Dewan dated 08.08.2016 under Rule-16 of CCS (CCA) Rules, 1965. The Article of charge is for lack of devotion towards his official duties and acted in a manner which is totally unbecoming of a Government servant, thus, violating the provisions contained in Rule 3(1)(ii) and 3(1)(iii) of CCS (Conduct) Rules, 1964.

4. The facts of the case are that while the applicant was working as Sub-Postmaster, Jamugurihat S.O. from 06.04.2011 to 03.07.2013, there was another employee by the name Smt. Sabita Devi, GDSBPM, Gameripal BO who have defrauded an amount of Rs. 10,24,177.00 in respect of several SB/RD accounts. The applicant submitted his representation dated nil against the memorandum of charge dated 08.08.2016. He claimed to have maintained those Registers/Accounts Book. He also claimed to have detected the fraud committed by Smt. Sabita Devi, GDSBPM. The fraud case commenced from the year 2001 to 2012 and only after his assumption of charge as Sub-Postmaster, Jamugurihat SO, the fraud was detected in 2012 and accordingly, this fraud amount of Rs. 10,24,177/- did not take place during his tenure. The Disciplinary Authority considering the representation of the applicant however, imposed a penalty of recovery of Rs. 2,50,000/- from the applicant vide order dated 1/6.03.2017. The applicant was given opportunity of making appeal within 30 days from the date of receipt of the said letter dated 01/06.03.2017. The applicant made his appeal before the Appellate Authority on 15.03.2017. After due consideration, said appeal was rejected by the Appellate Authority vide its order under No. Staff/9-289/2017 dated 28.06.2017.

5. After giving reasonable opportunities to both the parties, the case was finally heard on 13.02.2020 and reserved for orders. In addition to oral submissions, Sri D.N. Sharma, learned counsel for the applicant submitted his written argument on 13.02.2020. According to the learned counsel, the entire action of the respondent authorities towards the applicant is violative of principles of natural justice. Moreover, the learned counsel for the applicant also brought in the provisions of Rule 106 and 107 of Postal Manual Volume iii. He also highlighted Rule 4 of 204 of P&T manual Volume iii and cited the followings cases:-

(i) Kuldip Singh Vs. Commissioner of Police & Ors. (1999) 2 SCC 10; that suspension of presumption cannot take the place of proof even in domestic enquiry.

(ii) CAT, Jodhpur in the case of Mr. Teja Ram Newal Vs. Sri Jeeta Ram decided on 18.01.2013; wherein the O.A. has been allowed for not providing reasonable opportunity of being heard before imposing penal recovery.

(iii) Sawai Singh Vs. State of Rajasthan (1986) 3 SCC 454; the need for providing the charge by the department in vague charges framed.

(iv) O.K. Bharadwaj Vs. Union of India & Ors. (2001) 9 SCC 180; the need for providing the opportunity to the delinquent as minimum requirement of principles of natural justice.

6. The respondent authorities have filed their written statement on 31.07.2018. Among others, they have stated as under:-

(i) That the aforesaid fraud committed by Smt. Sabita Devi was detected on 22.12.2011. Charge sheet was issued on 08.08.2016 against the applicant for his lack of devotion towards his duties during his period as SPM, Jamugurihat SO w.e.f. 06.04.2011 to 03.07.2013. The said charge sheet was framed after completion of Departmental Inquiry following departmental procedure and formalities. The record of 11.10.2001 to 22.10.2011 were maintained in the same register. So it does not mean that the irregularities have been committed 15 years back. The period of irregularities has been specifically mentioned in the charge sheet.

(ii) That the applicant did not maintain any records and also did not call any passbooks for interest posting and violated the Rule 75(1)(iii), 75(1)(iv), 75(2)(i) & 75(3)(ii) & (iii) and 76(b) (2)(3) of Post Office Savings Bank Manual Vol.I and thereby giving ample scope to the GDS BPM to commit the fraud.

(iii) That the applicant had totally failed to perform his duties sincerely during the aforesaid period. Had he performed his duties sincerely by keeping strict vigilance over the works of BOs and maintained register, Special Error Book etc as prescribed in Rules and procedures, the then GDS BPM would not have got the opportunity to defraud such a huge amount of Govt. money amounting to Rs. 10,24,177/-. As such recovery of Rs. 2,50,000/- @ Rs. 20,000/- per month awarded to the applicant is just and proper.”

7. We have carefully gone through the documents and records submitted by both the parties. We also have taken into account the submissions made by the learned counsel for the applicant in his written argument. As regards to the procedure adopted by the respondent authorities, we do not observe any procedural lapse or infirmity in arriving the decision of the respondents of having found the applicant of lack of devotion to duty that substantially did contributed to the defrauding of the public money by Smt. Sabita Devi, Ex. GDSBPM, Gameripal BO. The speaking order of the Disciplinary Authority is clear and exact and that of the Appellate Authority is exhaustive and comprehensive.

8. The applicant also brought in relevant paras of Rule 106 & 107 of P&T Manual Volume iii in support of his claims. On going through these paras, it is however, found that there are provisions under which penalty of recovery can be made from the Govt. servant due to negligence or breach of orders or rules. The only restriction is that realistic assessment of contributing negligence on the part of an officer while determining any omission or lapses. The applicant also has brought in a copy of D.GP & T letter No. 3/312/70-Disc.! dated 17.08.1971 wherein guidelines have been provided in such cases as follows:-

“It is clarified for information of all concerned that recovery from pay as a punishment for any pecuniary loss caused by a Government servant by negligence or breach of orders should not exceed one third of basic pay (i.e. excluding dearness pay or any other allowances) and should not be spread over a period of more than 3 years. In other words, this recovery should not exceed one year basic pay in any case.”

9. It would be seen from the above that the respondent authorities have imposed a penalty of recovery of Rs. 2,50,000/- from the identified amount of Rs. 3,59,594.00 as per RTI reply dated 01/06.03.2017 during the period under which the applicant was in supervisory in-charge. The above order of DGP&T gives over all restrictions with the total amount of penal recovery for contributed lapses due to negligence should not exceed 1/3 of his basic pay and should not be more than 03 years or in other words, recovery should not exceed one year basic pay. The pay of the applicant at that time was Rs. 50,500/-. 1/3 of this Rs. 16,833/- or total recovery should not continue for more than 03 years which would come to Rs. 6,06000.00 or basic pay of one year which would come to the same amount of Rs. 6,06000.00.

10. Sri D.N. Sharma, learned counsel for the applicant at para 4 of his written argument submitted that Smt. Sabitri Devi, Ex. BPM, Gameripal B.O. has already refunded Rs. 2,44,000/- voluntarily. From the pay of the applicant, an amount of Rs. 1,40,000/- has been deducted from the month of January 2017 till his retirement in July 2017. The balance amount of Rs. 1,10,000/- is yet to be recovered from his gratuity after retirement. As per the RTI reply dated 01/06.03.2017, it means that the fraud which have pertains to his incumbency period was

Please Login To View The Full Judgment!

Rs. 3,59,594.00 and out of this, Rs. 2,50,000.00 was ordered to be recovered from the applicant for contributing negligence to the committing of the fraud. Out of this, Rs. 1,40,000.00 has since been recovered from his salary. 11. We have carefully considered this. Since the fraud was committed by another person, it would be not fair on the part of the respondent authorities to recover fully an amount of Rs. 2,50,000.00 against the total loss of Rs. 3,59,594.00 of public money during his incumbency period only because of his alleged contribution due to negligence/lack of devotion to duty. We are of the considered view that since substantial portion of the ordered of amount of Rs. 2,50,000.00 has since been recovered from his salary, in all fairness to him, balance amount of Rs. 1,10,000.00 need not be recovered from his gratuity, particularly since the applicant has retired. Accordingly, it is ordered that Rs. 1,10,000.00 shall not be recovered from his gratuity. 12. To the above extent, O.A. stands disposed of. There shall be no order as to costs.