Calcutta High Court (Appellete Side)
Union Of India And Others vs Shri Satya Jiban Roy on 1 December, 2021
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Sabyasachi Bhattacharyya
And
The Hon'ble Justice Jay Sengupta
W.P.C.T. 56 of 2020
Union of India and others
Versus
Shri Satya Jiban Roy
For the Petitioners : Mr. Achin Kumar Majumdar
Mr. Arijit Majumdar
...Advocates
For the Respondent : Mr. Ujjal Roy
Mr. Arpa Chakraborty
...Advocates
Heard on : 24th September, 2021
Judgment on : 1st December, 2021
Jay Sengupta, J.:
1. This is an application directed against a judgment and order dated
29.08.2019 passed by the Learned Central Administrative Tribunal, thereby
quashing and/or setting aside an order of recovery of Rs. 2,24,140/- and
passing a direction upon the authorities/petitioners to refund the recovered
amount to the respondent with interest at the rate of 8% per annum within
a stipulated time.
2. The respondent was working as a postal assistant at the Purulia Head
Post Office. It was alleged that on three different dates in the month of
August 2002, premature withdrawals of monthly income scheme account of
the depositor amounting to Rs. 4,10,000/- and odd were effected at the post
office. The amounts were remitted to the messenger of the depositor in cash
instead of by an account payee cheque or a demand draft, which was a clear
violation of the DG Posts Instruction No. 5-20/UP-06/2000-IND dated
29.08.2001 (the said Postal Instruction, for short) that was issued in
compliance with Section 269T of the Income Tax Act. Subsequently, the
depositor went before the learned District Consumer Redressal Forum with
his grievances. The learned Forum decided that the messenger of the
depositor was liable for the misappropriation and ordered him to pay back
the entire amount of premature withdrawal. The depositor preferred an
appeal before the learned State Commission. The learned State Disputes
Redressal Commission arrived at the conclusion that not only the messenger
of the depositor but the Purulia Head Post Office was also equally liable for
the violations.
3. In complying with the order of the learned State Commission, the
petitioners purportedly sustained a loss to tune of Rs. 4,67,765/-. The
present respondent was thereafter charge sheeted and penalty proceedings
ensued. In fact, a penalty was awarded after considering the respondent's
representation dated 31.04.2020 for recovery of Rs. 2,24,140/- from his pay
in 28 equal instalments. The respondent preferred an appeal dated
19.12.2011 before the Director of Postal Services, South Bengal Region.
However, the appellate authority, by an order dated 09.05.2012, upheld the
punishment. Thereafter, the respondent approached the learned Central
Administrative Tribunal, Calcutta Branch.
4. Learned counsel appearing on behalf of the petitioners submitted as
follows. Rule 3 sub-rule (2) Clause (ix) of the Post Office Savings Bank
Manual (Volume 1) designated the distribution of work where appropriate
individual would be responsible to issue sanction of withdrawals and
closure of accounts of sub offices/branch offices. The respondent being a
postal assistant, thus, could very well have issued sanction of withdrawals
and closure of accounts. The said Postal Instruction categorically barred
remission of any amount including principal or interest in cash if the same
was equal to or more than Rs. 20,000/-. This was in consonance with
Section 269T of the Income Tax Act. The office order was widely circulated to
all senior post master/post masters under the West Bengal Circular.
Besides, Section 269T of the Income Tax Act also barred such transactions
beyond a sum of Rs. 20,000/-. The respondent could not take a plea of
ignorance of law as the same was not permissible. In a similar case decided
by the Hon'ble Karnataka High Court reported in the Department of Posts
and Others vs. V.C. Sitamma, 2008 AIR Kant 62, it was held that the
Consumer Protection Act, 1986 had wide reach and had jurisdiction even in
case of service rendered by statutory authorities. Here, the learned Tribunal
failed to appreciate that the respondent was issued a charge sheet under
Rule 16 of CCS (CCA) Rules and subsequently, after due consideration of
the respondent's representation, the disciplinary authority imposed a
penalty. It was a discretion of the disciplinary authority whether to proceed
with a full-fledged disciplinary enquiry or not. The respondent could not
claim any prejudice in this regard.
5. Learned counsel appearing on behalf of the respondent, submitted as
follows. First, the present enquiry proceeding could not be sustained in law
because before the instant charge sheet, another charge sheet had been
issued to the respondent for the same alleged misdemeanour. A reply was
given in respect of the same making clear averments about the sequence of
events involved. After receiving this response, the authority did not pursue
the first charge sheet and illegally issued a second charge sheet. This was in
clear violation of Rule 3 of the Director General P & T Orders. In the said
first reply, the respondent had clearly stated that after the MIS pass books
were presented to the counter, the signature was tallied by the ledger clerk,
the Assistant Post Master thereafter signed the vouchers and only
thereafter, the respondent paid the amounts to the messenger in cash.
Therefore, the respondent was not the disbursing authority. As was quite
rightly held by the learned State Commission, it was the Assistant Post
Master who was ultimately responsible for the disbursement. If the voucher
for payment in cash was not signed by the Assistant Post Master, the
respondent could not have made the payment. It was also true that once the
Assistant Post Master signed the vouchers and sanctioned the payment, it
was not open to the respondent to stop such payment. Therefore, no liability
for any purported illegality in making such payment in cash could be
attributed to the respondent. Although the respondent participated in the
subsequent proceeding, yet the patent illegality in the same could always be
agitated by him. Besides, although the respondent had categorically
disputed the allegations in the charge sheet issued to him, no enquiry was
conducted. Reliance was placed on a decision of the Hon'ble Supreme Court
in the case of O.K. Bhardwaj vs. Union of India and Ors., (2001) 9 SCC 180
and it was submitted that if the charges were factual and if they were denied
by the delinquent employee, an enquiry should also be called for. Reliance
was also placed on a decision of the Hon'ble Apex Court in the case of Gulf
Goans Hotels Company Limited and Anr. Vs. Union of India and Ors., (2014)
10 SCC 673 and it was submitted that unless an executive order was
published in the Official Gazette, it did not have the force of law. The second
charge sheet like the first one was absolutely vague and ought to have been
quashed on the ground of vagueness alone.
6. In reply, learned counsel for the petitioners submitted that the first
charge sheet did not contain a mention of the relevant circular and the
relevant provision under the Income Tax Act. So, the said proceeding was
dropped and a second proceeding was initiated. In fact, a charge sheet was
issued also upon the Assistant Post Master and some money was recovered
from him after imposition of penalty.
7. We heard the learned counsels appearing on behalf of the parties and
perused the application and the written notes filed on behalf of the parties.
8. Before entering into the question of procedural irregularity, the bare
facts of the case are required to be assayed. The respondent was working as
a postal assistant at the Purulia Head Post Office. The process of making
payments at the post office comprised of the following steps. After an MIS
pass book was presented to the counter, the signature was to be tallied by
the ledger clerk. Thereafter, the Assistant Post Master signed the vouchers.
Only then could the respondent pay any sum of money to the messenger or
payee concerned in cash. Therefore, quite clearly the respondent was not the
disbursing authority. If the voucher for payment in cash was not signed by
the Assistant Post Master, the respondent could not have made the
payment. Looking at it from the other angle, once the Assistant Post Master
signed the vouchers and sanctioned the payment, it was not open to the
respondent to stop such payment. As such, no liability for any purported
illegality in making such payment in cash could be attributed to the
respondent.
9. This is also a case where two charge-sheets were issued to the
respondent over the self-same cause of action. Although, learned counsel for
the petitioners argued that the first charge sheet did not contain references
to the relevant circular and the relevant provision of the Income Tax Act,
which prompted the issuance of the second charge sheet, it is quite
apparent that this amounted to a violation of Rule 3 of the Director General
P & T Orders. Rule 3 makes it obligatory to mention the reasons for
cancellation of the original charge sheet or dropping of the proceeding and to
state in the order that the proceedings were being dropped without prejudice
to further action in future. This provision of law was not adhered to in the
instant case. In fact, the respondent gave a reply to the first charge sheet
explaining the facts and making clear averments about the sequence of
events involved.
10. Besides, although the respondent had clearly disputed the allegations
in the charge sheet issued to him, no enquiry was conducted in this case. In
O.K. Bhardwaj (supra), the Hon'ble Apex Court, inter alia, held that if the
charges were factual and if they were denied by the delinquent employee, an
enquiry should be called for. However, in the present case, no such enquiry
was undertaken although the delinquent respondent/employee disputed the
allegations levelled against him.
11. In view of the above, the implication of the respondent in the alleged
irregular disbursement of money on Monthly Income Scheme account of a
depositor to a messenger does not appear to be tenable either on facts or in
law.
12. Therefore, we do not find any worthwhile reason to interfere with the
judgment and order dated 29.08.2019 passed by the Learned Central
Administrative Tribunal.
13. Accordingly, the application is dismissed.
14. However, there shall be no order as to costs.
15. Urgent photostat certified copies of this judgment may be delivered to
the learned Advocates for the parties, if applied for, upon compliance of all
formalities.
(Jay Sengupta, J)
I agree
(Sabyasachi Bhattacharyya, J)
