Calcutta High Court (Appellete Side)
Basanta Kumar Paul vs Union Of India & Ors on 6 August, 2024
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
1
IN THE HIGH COURT AT CALCUTTA
(CONSTITUTIONAL WRIT JURISDICTION)
APPELLATE SIDE
Present:
The Hon'ble Justice Tapabrata Chakraborty
&
The Hon'ble Justice Partha Sarathi Chatterjee
WPCT 182 of 2012
Basanta Kumar Paul
-Vs.-
Union of India & Ors.
For the Petitioner : Mr. Somenath Bose,
Mr. Sudipta Panda,
Ms. Upama Nandy.
For the Respondents : Mr. Arabinda Sen.
Heard on : 05.07.2024
Judgment on : 06.08.2024
Partha Sarathi Chatterjee, J.:-
Preface:
1. The present writ petition challenges the validity of the order dated
April 4th, 2012, passed by the learned Tribunal in O.A. 310 of 2010. In this
order, the Tribunal declined to intervene in the dismissal order vide. no. F7-
1/98-99 dated November 5th, 2009, as well as the order of the appellate
authority dated August 3, 2010.
Petitioner's case:
2. The petitioner's case, as unfurled in the writ petition, is that the
petitioner started his career with the postal department in 1974 as an EDDA.
By 1979, he was promoted to the position of Postman, and later, in 1989, he
was further promoted to the post of Postal Assistant.
3. In 1992, he had been performing the duties of S.B. Counter Postal
Assistant at Ranigunj Head Post Office, which fell under the jurisdiction of the
Senior Superintendent of Post Offices, Asansol Division, Burdwan.
4. As S.B. Counter Postal Assistant, he was responsible for receiving
money from depositors and disbursing deposits to S.B. account holders based
on the pay-in slip and withdrawal form, respectively. His role does not
encompass the preparation of pay-in slips or MIS pass-books.
5. One P.L. Ganguly, a Postal Authorized Agent used to collect cash from
the depositors and complete the Form no. SB-3 either with the depositor or
independently, and proceed to open the MIS account.
6. On 18.01.1996, two joint accounts vide. MIS Account nos. 2777 and
2778 were opened by Nataraj Pramanik and Arati Pramanik, each with a
deposit of Rs.6,000/- and another MIS Account vide. no. 2781 was opened by
one Lal Mohan Mondal on 23.1.1996 with a deposit of Rs. 6,000/- through
P.L. Ganguly.
7. Mr. Ganguly received Rs. 66,000/-, 60,000/- & 60,000/-respectively
against those three accounts and even, in the MIS pass books and Ledger
Cards, the amounts of Rs. 66,000/-, 60,000/- & 60,000/-respectively were
recorded as deposited in those three accounts by interpolating of the digits,
namely, '6' and '0' but these deposits were not reflected in the records of the
postal department.
8. From the entries recorded in those MIS Accounts and Ledger Cards, it
revealed that the interest payments for those three accounts were recorded
approximately 22 to 23 times by a counter other than the S.B. Counter, even
on Sundays and postal holidays. However, these transactions were not
reflected in the postal accounts. Mr. Ganguly used the seal of the department
to perpetrate these misdeeds.
9. Subsequently, it was discovered that the documents, including SB-3
(Index Cards), pertaining to those three accounts were not found within the
department.
10. However, eventually, Mr. Ganguly realized that he might face charges
of cheating or fraud. He convinced the three depositors to return the interest
payments and provide declarations stating that they had deposited Rs. 6,000
each. As a result, the department did not incur any financial loss.
11. Suddenly, in connection with this incident, a charge-sheet was slapped
upon the petitioner by the respondent no. 4 on the following allegation:
"It is alleged that Sri B.K. Paul, while working as SB/MIS
Counter PA, Raniganj H.O. on 18.1.96 and on 23.1.96, accepted
applications for opening of new Ranignaj H.O. MIS Account no.
2777 and 2778 on 18.1.96 and MIS Account no, 2781 on 23.1.96.
He entered the amount of deposit in MIS LOT of the said MIS
Accounts on the respective dates as RS. 6000/- each. While he
delivered the MIS passbooks of the said three Accounts to the
concerned depositors in which the deposited amount were
entered as Rs. 66000/- in MIS Account no. 2777 dated 18.1.96,
Rs. 60000/- in MIS Account no. 2778 dated 18.1.96 and Rs.
6000/- in MIS Account no. 2781 dated 23.1.96. Thus, the said
Sri B.K. Paul is found to be responsible for total short credit
worth 1,68,000/- in the said three accounts. On the other hand
he is also responsible for payment of undue monthly interest in
respect of those three accounts for the period from 20.7.96 to
7.11.98 causing loss to the Govt. to the tune of Rs. 48945/- and
thus, Sri Paul is found to have acted in violation of Rule -25(9)
of P.O. S.B. Man. Vol-I and Rules 3(1)(i) and 3(1) (ii) of the CCS
(Conduct) Rules, 1964."
12. The respondents chose not to pursue any action against Mr. P.L.
Ganguly and even the private respondents, who could have adduced evidence
to unearth the truth, were not included as witnesses in the charge-sheet.
13. The petitioner submitted his written statement of defence denying all
allegations levelled against him. However, the department decided to proceed
against him and appointed an Inquiry Officer (in short, IO) and a Presenting
Officer.
14. The petitioner and his defence representative inspected certain
documents intended to be used against him and requested supply of some
additional documents to prepare his defence. The IO granted such request and
sent requisition to the department but upon receipt of such requisition, the
SSPO vide. his letter dated 25.8.2003 explicitly informed the IO that those
additional documents were not available at Raniganj H.O.
15. However, the Management adduced oral testimonies of two witnesses,
Jagadish Chakraborty and Basudev Mondal (examined as SW-1 and SW-2)
and although tendered seventeen documents as evidence, but failed to
produce a crucial document, SB-3. The SW-1 deposed that the depositors
explicitly acknowledged that they had deposited Rs. 6,000/- each and
returned excess interest payments, which were credited to the Government
Account via ACG-67. SW-1 and also indicated that without SB-3, it could not
be determined whether the alterations in MIS passbooks occurred after they
were handed over to the depositors.
16. The inquiry officer after assessment of the evidence brought on record
by the Management, concluded that the charge of violation of Rule 25(9) of
P.O. SB. Man. Vol-I and Rule 3(1)(i) and 3(1)(ii) of CCS (Conduct) Rules, 1964
was not proved.
17. Before the order of dismissal was issued to the petitioner, he preferred
an original application being OA no. 1287 of 2005 to challenge the order of
dismissal before the learned Tribunal. However, the learned Tribunal
dismissed the OA with liberty to the petitioner to prefer statutory appeal
assailing the order of dismissal.
18. The Disciplinary Authority (respondent no. 4) (in short, the DA)
disagreed with the findings returned by the IO and held that the charges
against the petitioner were established. The authority imposed a punishment
of dismissal from service, stating that the MIS passbooks were tampered with.
It was noted that although the depositors changed their statements regarding
the amounts deposited, it was highly unlikely that they themselves altered the
entries in the MIS passbooks. Mr. Ganguly received Rs. 66,000/-, Rs.
60,000/-, and Rs. 60,000/- from the depositors. Mr. Ganguly was claimed to
be very friendly with the CO (the petitioner) and three other charged officials.
Therefore, it was concluded that all four of them conspired to defraud the
Government. Upon detection of irregularities, the amounts were promptly
returned to the depositors to avoid legal action. Additionally, it was found that
ledgers were filled in only after being requisitioned by the Division Office. This
fact did not exclude the possibility of the petitioner's active role in destroying
or altering the SB-3/ledger cards.
19. The petitioner preferred the statutory appeal against the order of
dismissal but the appeal failed.
20. The petitioner assailed both the order of punishment and the order of
the appellate authority before the learned Tribunal in OA 320 of 2007. By an
order dated 28.04.2009, the learned Tribunal allowed the OA setting aside
both orders. It observed that according to the extant rules, since the DA
disagreed with the findings of the IO, he should have provided tentative
reasons and afforded an opportunity of hearing of the charge official.
Consequently, the matter was remanded to DA from the stage when the
inquiry report was submitted.
21. Pursuant to the order dated 28.04.2009, the DA passed an order of
disagreement dated 11.9.2009, which was assailed in OA 1434 of 2009.
However, the OA no. 1434 of 2009 was dismissed citing the reason that it was
pre-mature.
22. However, in terms of the order dated 28.04.2009 passed in OA 320 of
2007, a hearing was granted to the petitioner on 5.11.2009 but by passing an
order on that date, the DA passed the same order that appeared to have been
pre-determined.
23. The petitioner preferred statutory appeal against the order dated
5.11.2009 but the appeal was decided against the petitioner by an order dated
03.08.201o.
24. The matter was again carried in an original application, OA 310 of 2010
but the same was dismissed by an order dated April 4th, 2012. Consequently,
the present writ petition has been presented to question the justifiability of the
order dated 4.4.2012.
25. The parties have exchanged their affidavits, as directed.
Respondents' case:
26. The respondents' case, as projected in affidavit-in-opposition, is that
the learned Tribunal, after considering all aspects and taking into account the
judgments, reported at (2006)5 SCC 673 (State of Uttar Pradesh v. Raj
Kishore Yadav), (1995) 6 SCC 749 (B.C. Chaturvedi DPI & Ors. v. Union of
India & Ors.), (1994) 3 SCC 357 (Union of India & Ors. v. Upendra Singh),
(2006) 1 SCC 589 (State of Rajasthan v. Md. Ayab Naaz) , (2010) 2 SCC 772
(State of UP v. Saroj Kr. Sinha) & 1997 SCC (L & S) 1806( Union of India &
Anr. v. Ganayutham), passed an order dated 04.04.2012 with logical
observations and refused to interfere in the case.
27. As the Counter PA, the petitioner was responsible for collecting
applications for opening new MIS accounts, processing the relevant
documents, and delivering the MIS passbooks to the depositors. However, the
petitioner entered different amounts which were actually credited to the
Government Account. Therefore, the petitioner was responsible for the
misappropriation of Rs. 1,68,000/- due to the short credit of that amount.
28. Even though the transactions were conducted through a SAS agent, the
petitioner was still responsible for ensuring that correct amounts were
recorded in the MIS passbooks before they were delivered to the depositors.
Therefore, the petitioner concocted a story to place the blame squarely on Mr.
Ganguly but miserably failed in his attempt.
29. There was no convincing proof as to who actually manipulated the
figures in the pass books but admittedly, it was responsibility of the petitioner
to hand over the passbooks to the depositors. Out of three passbooks, there
were no visible mark of alteration in MIS Account nos. 2777 & 2781 but in MIS
passbook of Account no. 2778, there was overwriting.
30. The petitioner inevitably conspired with Mr. Ganguly and other
employees and as such, interests were paid against three accounts and the
petitioner cannot shirk his responsibility in such incidents.
31. During preliminary investigation, all depositors admitted that they had
deposited Rs. 66,000/-, 60,000/- & 60,000/- respectively and they used to
draw interests @ 715/-, 650/- and 650/- respectively for almost 24 months
continuously. Subsequently, to cover up the misdeeds, the depositors were
persuaded to turn around from their earlier stand to give a declaration that
they had actually deposited Rs. 6000/- each. Similarly, to avoid legal action,
excess payments were credited to Government Account.
32. According to Rule 25(9) of POSB Manual, Vol-I, it was responsibility of
the Counter PA to hand over the MIS passbooks to the depositors after
completion of all formalities, including ensuring that correct amounts were
recorded therein. Therefore, the petitioner cannot disown his liability in the
misdeeds.
33. All reasonable opportunities were provided to the petitioner to defend
and upon assessment of evidence, the DA has rightly issued the order of
dismissal and following the precedents set by the Hon'ble Apex Court on the
issue, the learned Tribunal refused to intervene into the matter.
Contents of Affidavit-in-reply:
34. As counter PA, the petitioner examined the application forms (SB-3)
and pay-in-slips and an entry of deposit of Rs. 6000/- in respect of all three
MIS Accounts was recorded in Long Book on the respective dates, leaving the
space blank for Account Number. Thereafter, those application forms and
pay-in-slips were transferred to Ledger Assistant for opening accounts in
Ledger Cards.
35. Accordingly, the Ledger Assistant opened new Ledger Cards based
upon those application forms and pay-in-slips, assigned Account Number and
prepared passbooks. Then the Ledger Assistant placed those documents, viz.
Ledger Cards, Passbooks & Pay-in-slips to the Assistant Postmaster (in short,
APM), who was in charge of Postmaster then. Upon receipt of those
documents, checked those documents and the entries entered therein and
authenticated the Ledger Cards by affixing his signature and seal.
36. Thereafter, the APM returned the Ledger Cards to the Ledger Assistant
for custody in the Ledger Binder, while the passbooks and pay-in-slips were
returned to the petitioner for delivery to the authorised agent who deposited
the amounts.
37. On receipt of passbooks and pay-in-slips from the APM, the Account
Numbers were noted in the Long Book. The counter foils of the pay-in-slips
were signed by the petitioner. The passbooks and the counter foils were then
returned to Mr. Ganguly, tokens given to him at time of acceptance of
deposited amounts were taken back.
38. Despite receipt of requisition, application forms (SB-3) duly signed by
the depositors, and the original Leger Cards pertaining to those three
accounts, as well as the MIS list of deposits and payments on the respective
dates had not been provided to the petitioner, causing serious prejudice to
him.
39. After careful assessment of evidence, the IO opined that the Ledger
Cards were not original and the entries of deposit of Rs. 66,000/- , 60,000/-
& 60,000/- in the Ledger Cards were vague. The Pay-in-slips, produced in
their original form, clearly demonstrated that the depositors had actually
deposited Rs. 6000/- each. Therefore, the allegation of short credit of
Rs.1,68,000/- is unfounded and as the interests paid in excess were credited
to Government Account, there cannot be any occasion for financial loss to the
Government. The depositors had never lodged any complaint before any
authority, nor had any FIR been lodged by the respondents.
40. From the findings of the IO, it is evident that before the passbooks
were delivered to SAS Agent, Mr. Ganguly, there was no manipulation. Any
manipulation in the passbooks, if any, was done by Mr. Ganguly or the
depositors after the passbooks were handed over to Mr. Ganguly.
Submissions:
41. Mr. Somenath Bose, learned advocate representing the petitioner,
argues that the respondents proceeded with a pre-determined mind to
somehow punish the petitioner. His next argument is that the order of
dismissal is based on no evidence and is instated on presumption and
assumption. He asserts that it has been not proven that the petitioner acted in
concert with Mr. Ganguly in committing the alleged misdeeds.
42. He argues that although the petitioner had been working as Counter PA
on the relevant dates, but the pay-in-slips were prepared by Mr. Ganguly.
Upon receiving the application forms (SB-3) and pay-in-slips, the petitioners
completed the required actions. At that time, no anomalies in recording the
amounts of deposits were detected before the passbooks were delivered to Mr.
Ganguly.
43. He further argues that the IO concerned, after assessment of evidence,
opined that the manipulations were done by outsiders. He contends that the
depositors admitted that they had deposited Rs. 6000/- each and interests
paid in excess were credited to Government Account. He claims the petitioner
cannot be held responsible for payment of interests.
44. He argues that it is expected that administrative action must be fair
and without bias. He contends that the incidents had allegedly occurred in
1996 but the disciplinary proceeding was initiated in 2001. According to him,
unexplained delay in initiating the proceeding gives room for colourable
exercise of power. The respondents committed mistake in not giving second
show-cause notice before imposition of punishment.
45. He argues that even if it is assumed that the petitioner mistakenly
entered erroneous entries, it can be argued that mere error of judgment is not
misconduct. He asserts that the learned Tribunal overlooked these issues and
came to an erroneous finding which cannot be sustained. To invigorate his
submission, he relies on the judgments, reported at (2005) 6 SCC 636 ( P.V.
Madhedavan v. Md. T.N. Housing Board), (2001) 2 SCC 330 ( State of Punjab
v. V. K. Khanna & Ors.), (1995) 2 SCC 570 (State of Punjab v. Chaman Lal
Gayal), (2010) 11 SCC 71 (South Bengal State Transport Corporation v. Ashok
Kumar Ghosh), (1975) 2 SCC 326 (Narayan Ganesh Dastane v. Sucheta
Narayan Dastane), 2020 SCC OnLine 886 SC (State of Rajasthan v. Heem
Singh), (1958) SC 300 (CB) (Khemchand v. Union of India & Ors.), AIR 1963
SC 1612 (State of Assam & Ors. v. Vimal Kumar Pandit), (1998) 7 SCC 84
(Punjab National Bank & Ors. v. Kunj Behari Mishra), AIR 1964 SC 363
(Union of India v. H.C. Goel), AIR 1973 SC 253 (Hindustan Steel Limited v.
State of Orissa), (2007) 4 SCC 566 ( Inspector Premchand v. Govt. of NCT of
Delhi), (1994) 5 SCC 267 (Rashlal Yadav v. State of Bihar & Ors.), (1992) 4
SCC 54 ( State of Punjab v. Ram Singh Ex- Constable), (1997) SCC 409 (
Zunjarrao Bhikaji Nagarkar v. UOI and Ors.), (2023) live law (SC 49) ( Union
of India and ors. v. Constable Sunil Kumar), (2015) 2 SCC 610 (Union of India
v. P. Gunasekran), (1998) 7 SCC 4 (Punjab National Bank and Ors v. Kunj
Behari Mishra), (1997) 2 SCC 491 ( State of Haryana v. Ratan Singh), 2022
live law SC 304 ( State of Karnataka and Anr. v. Umesh), (2011) 3 SCC 436 (
State of Orissa and Anr. v. Mamata Mohanty), (2011) 5 SCC 142 ( Chairman-
cum-M.D. Coal India Limited and Ors. v. Ananta Saha and Ors.), AIR 1957 SC
425 ( Manak Lal v. Dr. Prem Chand), AIR 1987 SC 2386 ( Ranjit Thakur v.
UOI and Ors), (1992) 1 SCC 56 ( Jiwan Kumar Lohia and Anr. v. Durgadutt
Lohia and Ors.).
46. In response, Mr. Arabinda Sen, the learned advocate representing the
respondents, argues that the petitioner was afforded all opportunities to
defend himself and as such, there was no flaw in decision making process. He
contends that the DA by passing reasoned order disagreed with the findings of
the IO and in terms of the order of the learned Tribunal, the petitioner was
provided the disagreement note supported by tentative reasons and granted a
hearing.
47. His next limb of argument was that this Court cannot re-appreciate the
evidence in disciplinary proceeding. The learned Tribunal considering all
these aspects and following the ratio of the judgments of the Hon'ble Apex
Court, has rejected the OA, leaving no scope before this Court to intervene in
this matter.
Analysis:
48. Therefore, the allegation against the petitioner was that he, while
working as a Counter PA, accepted applications for three MIS Accounts and
entered deposit of Rs. 6000/- each in the MIS lots but in the MIS passbooks,
he recorded deposits of Rs. Rs. 66,000/-, 60,000/- and 60,000/- respectively,
resulting in a short credit of Rs. 1,68,000/-. Additionally, he was responsible
for payment of undue monthly interests of Rs. 48,945 against these accounts.
Thus, he acted in violation of P.O. S.B. Man. Vol-I Rule 25(9) and CCS
(Conduct) Rules, 1964 Rules 3(1)(i) and 3(1)(ii).
49. As noted earlier, after evaluating the evidence, the IO found that the
charge against the petitioner was not proven. However, the DA disagreed with
this finding and issued a dismissal order without providing a disagreement
note outlining tentative reasons or an opportunity of hearing to the petitioner.
However, in terms of the order of the Tribunal, these mandatory procedural
requirements were fulfilled. Nonetheless, the disciplinary authority issued a
fresh dismissal order, maintaining the original decision, which was upheld by
the Appellate Authority.
50. The order of the learned Tribunal, currently under scrutiny in the
present writ petition, states that the learned Tribunal declined to intervene in
the matter, citing reasons that no procedural lapses were evident in
conducting the disciplinary proceeding. Citing precedents from the Hon'ble
Apex Court (as referenced in paragraph no. 26 above), the Tribunal concluded
that the scope of judicial review in disciplinary inquiries is very limited. It
emphasized that Courts or tribunals cannot re-evaluate the evidence or act as
an appellate body over the decisions of the DA and the Appellate Authority (in
short, AA).
51. The main thrust of argument of Mr. Bose, is that the respondents proceeded
with a pre-determined mind and the order of dismissal is perverse, being
based on no evidence. Conversely, Mr. Sen, strenuously contends that there
was no flaw in decision making process. This Court cannot re-appreciate the
evidence nor sit in appeal over the decision of DA and AA. Therefore, in the
present writ petition, we are called upon to adjudicate these issues.
52. Needless to observe that the basic concept of fair play in action is
squarely applicable in administrative, judicial and quasi-judicial field. When
an authority assumes jurisdiction to discharge quasi-judicial function, it is
required to act fairly, impartially, and without any bias or pre-conceived
notion. If the Court finds that authority has acted arbitrarily, with closed mind
and in violation of rules of natural justice or statutory rules, the Court can
extend the compass of judicial review to render justice.
53. The scope of judicial review grounded on illegality, irrationality say,
Wednesbury unreasonableness and procedural impropriety. The doctrine of
reasonableness gives way to doctrine of proportionality also. Judicial review of
administration action aims to prevent arbitrariness, irrationality,
unreasonableness, bias and mala fides. The basic requirement of Article 14 of
the Constitution of India is fairness in Sate action. Admittedly, scope of
judicial review is generally confined to decision making process but if it is
found that decision is perverse, irrational or grossly disproportionate, that
decision will come under the purview of judicial review.
54. In case of B.C. Chaturvedi (supra), the Hon'ble Supreme Court ruled
that the Court or Tribunal may intervene if the proceeding against a
delinquent officer is held in derogation of the principles of natural justice or
statutory rules governing the inquiry. If the conclusion and findings of the
disciplinary authority are not supported by evidence or are so unreasonable
that no rational person would reach the same, the Court or Tribunal may
intervene and mould the relief to suit the specific circumstances of each case.
55. To address the issues effectively, let us review the procedure required
to be adhered to by the postal department staff, including Counter Assistant
(CA) at the time of opening an account including MIS Account.
56. The procedure for opening an account by a Counter Assistant (CA), as
outlined in the Post Office Small Savings Scheme Manual, Part-II, 10th
Edition, 1997 (supplied by the petitioner's advocate), involves verifying entries
on the application form (SB-3) and pay-in-slip. After collecting the deposit
amount and stamping both parts of the pay-in-slip with the date, the CA
makes an entry in the Long Book and notes the serial number of the entry on
the SB-3. Thereafter, the CA transfers the SB-3 and pay-in-slip to the Ledger
Assistant and then a token is issued to the depositor.
57. The Ledger Assistant refers to the Index to Ledger Cards, notes the next
number therein and enters the number in the pass book, ledger card, SB-3 and
pay-in-slip. The Ledger Assistant then prepares the ledger card (SB-75) and
pass book with the entry of deposit and particulars of depositor, nominee etc.
58. The passbook, SB-3, pay-in-slip, Index to ledger cards, and ledger card
should then be transferred to the Post Master for checking and authentication.
The Post Master compares the entries, signs on page 1 of the passbook, and
initials against the entry of deposit. Thereafter, the Post Master authenticates
the ledger card, and then transfers the ledger card and Index to ledger card to
the Ledger Assistant, and the passbook, SB-3, and pay-in-slip to the CA.
59. The CA, upon receiving the passbook, SB-3, and pay-in-slip, should
compare the deposit amount in the passbook with pay-in-slip and the long
book. He then notes the account number in the long book. He then delivers
the pass book and the counter foil of pay-in-slip to the depositor after
collecting the token from him. Therefore, it is clear and evident that a Counter
PA is not tasked with recording the deposit amount in the passbook.
(Whether Para 60 to Para 67 is required ?)
60. For a limited purpose, only to respond to the petitioner's contention
that the order of dismissal is perverse, being based on no evidence, let us
examine the evidence presented by the Management. There cannot be any
quarrel in accepting the proposition that the standard of proof in a
disciplinary proceeding is preponderance of probabilities.
61. Admittedly, the accounts were opened through SAS agent, Mr.
Ganguly. From the inquiry report, in transpires that the application forms
(SB-3) were not presented as evidence. However, the pay-in-slips, MIS LOTs
and other related documents confirmed that an amount of Rs. 6000/- each
was credited to those three MIS Accounts, and those documents were duly
checked, verified and signed by APM. No anomalies regarding deposit
amounts on those dates in HO Summary were detected.
62. SW-1, Mr. Jagadishwar Chakraborty, confirmed that he had
documented the statements of two depositors who admitted depositing Rs.
6000/- each. He examined the pay-in-slips for three accounts, showing
deposits of Rs. 6000/- each. The MIS lots for these three accounts also
corroborated this information. He testified that there were alterations in the
recorded deposit amounts in the passbooks.
63. Indisputably, on the relevant dates, Mr. Ravindra Singh worked as
Ledger Assistant but the IO noticed that 'the handwriting of regular ledger
PA differs with the entries appeared on the ledger cards'. The interests were
paid on holidays. The IO opined that the original ledger cards were
substituted. The depositors admitted that they had deposited Rs. 6000/- each
in respect of those three accounts. Interests paid in excess were credited to the
Government Account and as such, there was no financial loss to the
Government. After assessing of this evidence, IO came to a finding that charge
against the petitioner was not proved.
64. In the initial dismissal order, the DA noted that it was unlikely that the
depositors themselves had tampered the passbooks. He suggested that the
person who prepared the passbook was likely responsible for any tampering in
the passbooks. Additionally, due to the close relationship between the SAS
agent and the CO (the petitioner), the DA did not rule out the CO's
involvement. The DA also speculated that the agent might have collected
deposits and obtained the depositors' signatures on blank application forms
(SB-3) and index cards. He also speculated that the agent possibly prepared
SB-103 forms, passbooks, and ledger cards. Ultimately, the DA concluded that
the agent, along with the CO, Sri R. Singh (Ledger Assistant), and APM-I, had
colluded to deceive both the depositors and the government. He also did not
rule out the possibility that the CO might have destroyed the SB-3 or ledger
cards.
65. Therefore, it is evident that in his initial order, the DA did not evaluate
any evidence rather, he based his findings on mere speculation and
assumption.
66. In his subsequent dismissal order, the DA observed the in MIS
passbook A/C no. 2781, there was no manipulation in the entries. The amount
was written in figure and in words keeping a gap between the words, unlike in
other writings. Based on the writing style, he inferred that the writings were
done by the same person using same ball pen. Similar observation was made
in respect of passbook A/C no. 2777. In passbook A/C no. 2778, there was
overwriting due to mistake. He further inferred that the passbook A/c no.
2778 contained the original writing of ledger PA, where deposit amount was
clearly recorded in words as 'Sixty thousand only'.
67. He further observed that ledger cards, which were duly attested by the
supervisor concerned, were original. The entries in the ledger cards were
made subsequently. He noted that as per Rule 25(9) of POSB Manual, Vol-I, it
was duty of Counter PA (the CO) to check the passbooks before delivering
them to the depositors. Therefore, the CO was aware of these irregularities but
did not point out and thus, the charge was proved.
68. It is evident that in the second dismissal order as well, there was no
assessment of evidence. The DA did not analyse the evidence adduced by SW-
1 and SW-2. As noted previously, the management did not produce the
application forms (SB-3), and there was no discussion on other documentary
evidence. Without reaching a specific factual conclusion that manipulations
occurred in the passbooks before their delivery to depositors, the DA
concluded that since it was the duty of the CO, as per existing rules, to verify
entries in the passbooks, he must have been aware of irregularities crept
therein but failed to report them and as such, the charge was proved.
69. In a departmental inquiry, the decision should be based on a careful
consideration of all relevant factors and evidence. The charge was that the CO
entered the amounts being Rs. 66,000/-, 60,000/- & 60,000/-in MIS Lots
and passbooks, resulting in a short credit of Rs. 1,68,000/-. Additionally, he
was responsible for excess payments of interests to the tune of Rs. 48,945/-.
Therefore, at least, it should have been proved to be probable that it was the
petitioner who entered such entries and played an active role in recording
such entries or manipulation or in payment of interest. Be it noted that no
charge of negligence in verifying the passbooks before delivering to the
depositors or the agent were levelled against the petitioner.
Conclusion:
70. Therefore, based on above discussion, we have no other alternative but
to hold that the second dismissal order is based on no evidence and as such,
the same cannot be sustained. The learned Tribunal below glossed over these
issues and abruptly jumped to conclusion by mechanically paraphrasing
certain judgments of the Hon'ble Supreme Court and therefore, the order of
the learned Tribunal also cannot be sustained.
71. We have been informed that the petitioner has already attained the age
of superannuation in 2013. Given these supervening circumstances, it would
not be expedient to restore the disciplinary proceeding from the state of
submission of the inquiry report and require the petitioner to undergo another
protracted proceeding after such a long period since his retirement.
72. Having regard to the facts and circumstances of the case, we are of the
considered opinion that it would not be proper to grant back-wages to the
petitioner for the period during which he has not worked. But, as the
petitioner was deprived of the employer's contribution towards the Provident
Fund, the payment of gratuity, pension and the leave encashment because of
his dismissal from services, therefore, to serve the ends of justice we direct
that the petitioner be provided notionally the benefit of continuity of service
not for the payment of back-wages for the period during which he did not
serve the department, but for the purpose of retirement benefits like
employer's contribution towards provident fund, payment of gratuity, pension
and leave encashment etc.
Order:
73. In view thereof, the order of the learned Tribunal dated 4.4.2012
passed in OA 310 of 2010, the order of dismissal dated 5th November, 2009
and the order of the Appellate Authority dated 3.8.2010 are quashed. The
respondent nos. 1 to 4 are directed to pay the petitioner's terminal benefits
including pension, which would be calculated based on his last drawn pay as if
he had been in service. The entire exercise of payment of retiral dues, as
indicated above, shall be carried out by the said respondents within a period
of two months from the date of communication of this order.
74. With these observations and order, this writ petition is, thus, disposed
of, however, without any order as to the costs.
75. Parties shall be entitled to act on the basis of a server copy of this
Judgement and Order placed on the official website of the Court.
76. Urgent Xerox certified photocopies of this judgment, if applied for, be
given to the parties upon compliance of the requisite formalities.
(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)
