O.A. No. 1028/11. Case: K. Sasisekharan Nair Vs Union of India, The Assistant Director General (VIG. I), The Chief Postmaster General and Union Public Service Commission. Central Administrative Tribunal
| Case Number | O.A. No. 1028/11 |
| Counsel | For Appellant: Mr. Shafik M.A., Advocate and For Respondents: Mr. Millu Dandapani, ACGSC [R1-3] & Mr. Thomas Mathew Nellimoottil [R4], Advocates |
| Judges | K.B.S. Rajan, Member (J) and K. Noorjehan, Member (A) |
| Issue | Constitution o India - Article 320(3)(c); Indian Penal Code (45 of 1860) (IPC) - Section 417; Negotiable Instruments Act, 1881 - Section 138 |
| Judgement Date | May 22, 2013 |
| Court | Central Administrative Tribunal |
Order:
K.B.S. Rajan, Member (J), (Ernakulam Bench)
1. The applicant is a retired officer of the Indian Postal Service Group A, having retired as Senior Superintendent, RMS 'TV' Division, Trivandrum with effect from 29.2.2008. When he was serving as Senior Superintendent of Post Offices, Trivandrum North Division during February, 2006 to August, 2007, under his administrative control came the Trivandrum GPO among other post offices. In June, 2007 on conducting half yearly accounts verification of the said GPO, the Deputy Superintendent of Post Offices, Trivandrum North Division detected a shortage of Rs. 14,00,000/- in the cash balance of the GPO. The cash and other instruments such as Postal Orders etc. were in the joint custody of the Treasurer No. 1 and the Deputy Postmaster No. 2 (delegated duty of the Senior Postmaster) as per the P&T Financial Hand Book Vol. II. As the applicant was holding administrative control of the said post office, he was issued with a charge sheet under Rule 14 of the CCS (CCA) Rules, 1965 on 22.2.2008 just 7 days prior to his superannuation. The charges were as under:-
(i) The applicant while functioning as Sr. Supdt. of Post Offices, Thiruvananthapuram North Dn., granted vigilance clearance for appointment as treasurer to a Postal Assistant of the GPO, convicted of an offence under Section 417 of IPC (offence under section 138 NI Act). This official on conviction was sentenced to undergo simple imprisonment for a period of four months and to pay a fine of Rs. 1000/- was continuing in the department on the strength of the order of the appellate court suspending the sentence, during the pendency of the appeal. This official on his appointment as treasurer, committed misappropriation of cash amounting to Rs. 1474238/- within a year of his posting.
(ii) The applicant, as SSP, TVM North Dn., failed to notice the incidence of retention of cash in excess of the authorized limit of Rs. 24.5 lakhs fixed in the year 1998 due to his failure to obtain and review the weekly statement of balances (PA-16) and this facilitated the misappropriation of Rs. 1474238/- by the treasurer.
(iii) The Treasurer-I of Thiruvananthapuram GPO was not maintaining the out of account register as per the rules on the subject and this was not noticed by the applicant during his annual inspection of the GPO from 27.12.2006 to 3.12.2006 and this helped the treasurer to misappropriate Rs. 74,238/- from the out of account cash in June, 2007.
The applicant having denied the charges, formal inquiry was conducted. The inquiry officer submitted his report vide Annexure A-5 dated 11.5.2009 holding that the charges were not proved. However, the Disciplinary Authority struck a disagreement note vide memo dated 15th March 2010 holding all the charges proved. Annexure A-6 refers. The applicant submitted his representation dated 29.3.2010 (Annexure A-7). The case was referred to the UPSC in December, 2010 and the Commission gave its advice vide A-2 communication dated 25.7.2011 recommending penalty of withholding of 20% of monthly pension of the applicant for a period of 5 years. Annexure A-1 order imposing the aforesaid penalty was passed by the Assistant Director General (VIG. I) by order and in the name of the President. The applicant has filed this O.A. challenging the said penalty order as well as advice of the Commission, seeking the following reliefs:-
1. To call for the records relating to Annexure A-1 to A-10 and to quash A-1 order imposing a punishment of 20% reduction of pension for a period of 5 years.
2. To call for the records of A-3 charge sheet and to quash all proceedings based on the same.
3. To direct the respondents to grant him full pension with effect from the date of his retirement with all consequential benefits with 12% interest.
4. To issue such other appropriate orders or directions this Hon'ble Court may deem fit, just and proper in the circumstances of the case. and
5. To grant the costs of this Original Application.
2. The respondents have contested the O.A. According to them there is no legal infirmity in the decision making process and imposition of the penalty of withholding of 20% of pension is fully valid as the order was passed strictly following the rules and regulations on the subject. It has been contended that in view of the administrative lapses in the very selection of Treasurer No. I and his failure in the proper inspection of the GPO, Trivandrum, which resulted in the pecuniary loss to the Government, the applicant who was the then Senior Superintendent of Post Offices was charge sheeted under Rule 14 of the CCS (CCA) Rules. It has also been stated that the selection of the Treasurer No. I was based on the report/clearance for appointment as Treasurer No. I, given by the applicant himself who had failed to take notice of a crucial fact of an earlier conviction of the said individual. They have also justified the reasons for disagreement by the Disciplinary Authority who has held that all the charges stood proved.
3. The applicant has filed his rejoinder in which he had stated that the GPO is a gazetted Head Post Office headed by Senior Postmaster of Postal Service Group B Cadre. As far as Treasury is concerned the immediate superior is Deputy Postmaster. The Senior Superintendent of Post Offices sits in an independent administrative office for overseeing the work of the subordinates. One of the Assistant Superintendents was designated as Office Supervisor who has to conduct supervision of the work of PA or Treasurer working in the GPO. As far as the question of appointment as Treasurer No. I is concerned, the incumbent to the said post was convicted under the provision of Section 138 of the Negotiable Instruments Act and this fact was known to the Senior Post Master but he did not mention the same in his report. The report rather stated that no disciplinary case was pending or contemplated against the PA (who was appointed as Treasurer later on). At the time of giving vigilance clearance, the applicant duly verified the prescribed records such as confidential report and service book of the PA. Records made available to the applicant were scrutinized did not contain any adverse remarks nor had they reflected about the conviction of the applicant under Rule 138 of the Negotiable Instruments Act. In any event the said PA/Treasurer No. I was acquitted in the criminal proceedings vide judgment dated 21.7.2007. As regards failure to review weekly statement of balances, which resulted in the retention of the excess cash over and above the authorized amount the applicant has submitted that the excess retention of cash as a regular feature was noticed by the applicant during the inspection of the GPO. There were overwhelming reason for retention of unavoidable amount beyond the prescribed limit. Similarly as regards charge No. 3 the cash retained included amount which is not Government Cash. The alleged shortage is out of full cash entrusted to the Treasurer in June, 2007 for payment to outside agency such as Insurance, LIC, Cooperative Bank etc. The respondents have mistakenly presumed that the amount kept out of account for various reasons is also (which pertain to non Government money) a part of Government money. It has also been stated in the rejoinder that even as per the respondents, the misappropriation of cash is not the subject matter of the inquiry against the applicant. Though the inquiry officer has held the charges as not having been proved, the Disciplinary Authority disagreed without considering any of the evidences adduced in the inquiry but solely based on speculation, surmises and conjectures. The applicant has also contended that the CLI report was not produced as a exhibited document in the inquiry.
4. Additional reply statement has been filed by the respondents.
5. Counsel for the applicant argued as under:-
(a) Provisions of Rule 9 of the CCS (Pension) Rules could be pressed into service only when there is a grave misconduct and while the Inquiry Officer had held the charges as not proved, nowhere has there been a finding even by the Disciplinary Authority that the applicant had committed a grave misconduct.
(b) The decision of the Disciplinary authority is one of mechanical in nature, without due application of mind, in as much as, he had...
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