Sh.R.C.Sharma vs Union Of India & Ors
2010 Latest Caselaw 866 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI


+                              W.P. (C.) No.8233/2002


%                            Date of Decision: 16.02.2010


Sh.R.C.Sharma                                                 .... Petitioner
                         Through Mr.K.K.Rohtagi, Advocate.


                                     Versus


Union of India & Ors                                        .... Respondents
            Through                  Nemo.


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.   Whether reporters of Local papers may be                   YES
     allowed to see the judgment?
2.   To be referred to the reporter or not?                     NO
3.   Whether the judgment should be reported in                 NO
     the Digest?




ANIL KUMAR, J.

*

The petitioner has challenged the order dated 7th February, 2002

in O.A No.2408/1999 titled Sh.R.C.Sharma v. Union of India and Ors

passed by the Central Administrative Tribunal, Principal Bench

whereby petitioner's original application impugning the disciplinary

authority order dated 31st July, 1998 and Appellate Authority's order

dated 17th February, 1999 was dismissed.

The petitioner was recruited as a Postal Clerk and on completion

of 16 years of service he was first promoted under time bound scheme

and thereafter on completion of 26 years of service he was given second

time bound promotion in October, 1991.

During the period September, 1995 to February, 1996 the

petitioner was working as Assistant Post Master, Post Office, Agra.

While working as an Assistant Post Master, Post Office, Agra allegations

were made against him that he allowed remittance to SPM, Idgah

Colony, Post Office, Agra on fake liabilities and improper demand which

resulted into double payment of National Saving Certificates/Kisan

Vikas Patras at Idgah Post Office, Agra amounting to Rs.5,96,270/-.

Consequent to the allegations made against the petitioner a

memo of imputation under Rule 16 of CCS (CCA) Rules was served

upon the petitioner and an enquiry was initiated against him. During

the enquiry proceedings the petitioner requested for some documents

and respondent No.4 Senior Superintendent of Post Office, Agra division

partly allowed the inspection of the documents on 29th June, 1998.

Pursuant to the enquiry initiated against the petitioner after

considering the statement of defence and other materials on record and

the chargesheet dated 29th April, 1998 disciplinary authority imposed

the penalty of recovery of Rs.79,200/- in 36 equal installments of

Rs.2200/- from the pay of the petitioner. An appeal preferred by the

petitioner to the Director, Postal Service, Agra region, Agra was also

dismissed by the Appellate Authority on 17th February, 1999. Aggrieved

by the order of the disciplinary authority and the appellate authority,

the petitioner filed an original application bearing No.2408/1999 titled

R.C.Sharma v. Union of India before the Central Administrative

Tribunal, Principal Bench, New Delhi on 28th October, 1999 which was

also dismissed by order dated 7th February, 2002 which is impugned

before this Court in this writ petition under Article 226 of the

Constitution of India. A review petition was also filed by the petitioner

being RA No.74/2002 which was also dismissed by order dated 1st

April, 2002 by the Principal Bench, Central Administrative Tribunal.

Before the Tribunal the order of the disciplinary authority and the

appellate authority was challenged primarily on the ground that the

appellate authority has himself held that the remittance on the relevant

dates had been rightly ordered and remittance was rightly done by the

petitioner, therefore, he could not be held guilty of double payment as

his responsibility was confined to make remittance to the Idgah Colony,

Post Office and not for its actual disbursement by the postal

authorities. The Tribunal, however, rejected the plea of the petitioner

holding that the petitioner had the cash in hand held by SPM, Idgah

Colony, Post Office which had been checked by the petitioner with

reference to relevant documents from time to time when remittance was

sought and consequently without the involvement of the petitioner

double payment could not have been facilitated.

The learned counsel for the petitioner has very emphatically

contended that the petitioner only had to ascertain whether the SPM,

Idgah Colony, Post Office, Agra had sufficient cash in hand in order to

decide the remittance of the cash to said post office and the petitioner

was under no duty to check whether the amount is to be paid for which

particular Kisan Vikas Patras and National Savings Certificates. In the

circumstances, it is contended that the remittance of amount to one of

post offices will not reflect any involvement of the petitioner in any

manner nor any negligence or implication of the petitioner can be

imputed in the facts and circumstances. Since there was deficiency in

the cash the SPM, Idgah Colony, Post Office, Agra, therefore, the

remittance was correctly ordered by the petitioner calculating the cash

liability for payment of Kisan Vikas Patras and National Savings

Certificates etc., however, it was not to be checked by the petitioner as

to whether the amount remitted was to be paid to particular Kisan

Vikas Patras and National Savings Certificates.

The learned counsel has also emphasized that there was no

record available in the Head Post Office to ascertain whether the

payment to particular Kisan Vikas Patras (KVPs) and National Savings

Certificates (NSCs) had actually been made earlier or not made before

releasing the payment by the head office to the SPM, Idgah Colony, Post

Office, Agra. In the circumstances, it is contended that it is a case of no

evidence against the petitioner showing his implication to the charges

imputed against him nor any misconduct has been made out against

the petitioner. The learned counsel for the petitioner has also relied on

the decision in case of another employee on the same post during the

period when the petitioner was not available, in whose case it had been

held by the revisional authority that by remitting the amounts to sub

post office, no misconduct was committed by such an employee who

only had to check the availability of cash in the sub post office.

Perusal of the imputations and the charges against the petitioner

reveals that the specific allegation is that during the period 1st

September, 1995 to 22nd November, 1995 and 22nd December, 1995 to

12th February, 1996, the petitioner failed to check the liabilities of

payment for cash properly shown on bill account dated 11th October,

1995; 16th October, 1995; 19th October, 1995; 20th October, 1995; 25th

October, 1995; 23rd December, 1995; 29th December, 1995; 6th

January, 1996; 12th January, 1996; 18th January, 1996; 20th January,

1996 and 23rd January, 1996.

The writ petition has been contested by the respondents and a

counter affidavit dated 17th July, 2003 was filed, however, the grounds

taken inter-alia are that the disciplinary authority has considered the

facts and circumstances and has found the petitioner guilty of the

charges against him which have been reiterated by the appellate

authority vide its order dated 17th February, 1999. The respondents,

however, have not averred specifically and refuted the allegations made

by the petitioners that no record of Kisan Vikas Patras and National

Savings Certificates was available in the head office which could be

checked by the petitioner before releasing the cash payment to the

Idgah Post office, Agra nor it was to be ascertained by the petitioner

before releasing the amount as for which Kisan Vikas Patras and

National Savings Certificates the amount is to be paid by the sub post

office. Perusal of the counter affidavit filed on behalf of the respondent

also reveals that the scope of the duty of the petitioner that is to release

to SPM, Idgah Colony, Post Office, Agra after checking the cash in hand

with the same post office has not been denied. An additional affidavit

was filed on behalf of respondents dated 24th July, 2004 giving the

names of the offenders along with the action taken against them.

Perusal of the additional affidavit dated 24th July, 2004 on behalf of the

respondents reveals that the proceedings were also initiated against

Sh.Parsadi Lal alleged to be a subsidiary offender under Rule 16 and he

was awarded the punishment of Rs.20,000/- by memo dated 31st July,

1998.

The learned counsel for the petitioner has contended that during

the period petitioner was not working, Parsadi Lal was discharging the

same work which was done by the petitioner and for the similar acts

that is release of payment to SPM, Idgah Colony, Agra disciplinary

proceedings were also initiated against him. The learned counsel for the

petitioner has further submitted that Parsadi Lal had filed an appeal

against the punishment awarded to him which was dismissed, however,

a revision filed by Sh.Parsadi Lal was accepted by order dated 18th

February, 2005 and he was absolved of all the charges against him.

Though yet another additional affidavit dated 12th April, 2008 was

filed on behalf of respondents indicating the details of the punishment

awarded to different officials who were alleged to be responsible for

making double payment in respect of Kisan Vikas Patras and National

Savings Certificates, however, the said affidavit did not stipulate that

Sh.Parsadi Lal who had been functioning at the post of the petitioner in

his absence had not been absolved of the charges against him in a

revision filed by him and thus it is admitted that Shri Prasadi Lal

against whom same misconduct was alleged had been absolved of any

misconduct.

The petitioner had also filed an additional affidavit dated 27th

February, 2009 along with CM No.3261/2009 which was allowed by

this Court by order dated 13th March, 2009 and liberty was given to the

respondent to file reply to the additional affidavit. Despite the liberty

granted to the respondent to file response to the additional affidavit filed

by the petitioner the response had not been filed.

The petitioner in the additional affidavit categorically deposed

that he had worked on the seat of Assistant Post Master (Sub Accounts)

at Head Post office, Agra for the period 1st September, 1995 to 22nd

November, 1995 and 22nd December, 1995 to 12th February, 1995,

however, his duty was to ensure that all the time adequate cash

envelopes and postal stamps etc were available each day not only at the

SPM, Post Office, Agra district but in 200 sub Post Office. The petitioner

asserted that National Savings Certificates (NSCs) and Kisan Vikas

Patras (KVPs) are basically fixed deposits of general public with the

specific post office and carry a specified interest rate as decided by the

Government. According to the petitioner these transactions for

obtaining National Savings Certificates and Kisan Vikas Patras are

carried on at the concerned post office. On maturity as per the terms,

the customers present the National Savings Certificates and Kisan

Vikas Patras in original along with signatures seeking discharge to the

same sub post office from where it is issued and after scrutiny the sub

post office releases the matured amounts due on National Savings

Certificates and Kisan Vikas Patras. It only after the release of the

maturity amount due on National Savings Certificates and Kisan Vikas

Patras which are also recorded in the books of accounts of the sub Post

Office, the vouchers/information is released and sent to the head Post

Office for reconciliation and record and consequently considering all

these facts and circumstances there is no role of the petitioner in

releasing the double payment of National Savings Certificates and Kisan

Vikas Patras in any manner at all and it is a case of no evidence against

the petitioner and consequently the punishment imposed upon him

which has been even approved by the appellate authority is without any

basis.

The petitioner has also relied on the order passed in case of

Sh.Parsadi Lal who was carrying on the same work in absence of the

petitioner on the same post. The revision petition filed by Sh.Parsadi Lal

was disposed of by order dated 18th February, 2005. While dealing with

the case of Sh.Parsadi Lal the disciplinary authority had held that the

charges leveled against the delinquent was vague and did not contain

full facts leading to the loss and manner in which the said Parsadi Lal

was linked to the alleged loss. It was also held that in any case the

irregularity in discharging certificates by the SPM (Sub Post Master)

cannot be linked to the remittance by the head Post Office to the sub

Post Office. The relevant order of the revisional authority in the case of

Parsadi Lal Srivastava had held as under:-

" The petition has been carefully considered along with the relevant records of the case and it is observed that the petitioner who officiated as the APM (SB A/c) in a leave arrangement for four days had remitted Rs.20,000/- to the SPM, Idgah Colony Post Office as the latter had shown the liability and demanded cash which was also duly acknowledged. It is further observed that the petitioner was obliged to send the remittance requested by the Idgah Colony Post Office and had no means to check the fictitious liabilities maintained, if any, by the SPM Idgah Colony Post Office.

According to the instructions contained in Rule 11 of the CCS (CCA) rules, 1965, the penalty of "recovery from his pay of the whole or part of any pecuniary loss caused by him to the government by negligence or breach of orders" can be ordered for good and sufficient reasons. The Govt. of India's instructions on this subject require that there should be a direct nexus between the acts of the petitioner and the loss sustained by the Government. In this case it is alleged that failure of the petitioner to check the liabilities and demand for cash properly had facilitated the double payment of NSCs/KVPs at Idgah Colony Post Office, Agra totaling amount Rs.5,96,270/- thereby causing huge loss to the Government. The charge sheet does not give details of

how he amount of total loss of Rs.5,96,270/- has been arrived at. There is no nexus between the acts of the petitioner and the said loss to the Government. In the circumstances ordering recovery from the petitioner would not be proper. The impugned penalty therefore deserves to be set aside.

In exercise of the powers conferred on me vide Rule 29 of CCS (CCA) Rules, 1965, I hereby order accordingly."

From the perusal of the reasoning of the revisional authority it is

apparent that even in the case of the present petitioner there is no

direct nexus between the acts of the petitioner and the loss sustained

by the Government as it was not the duty of the petitioner to check the

actual disbursement of payment in respect of National Savings

Certificates and Kisan Vikas Patras at Idgah Colony, Post Office, Agra

before remitting the amount to sub post office.

Despite the opportunity no one is present on behalf of the

respondent nor any statements have been made to refute the averments

made in the additional affidavit. There is no fact on record to show the

nexus between the petitioner and the loss sustained by the respondent

on account of the double payment made in respect of National Savings

Certificates and Kisan Vikas Patras. The petitioner and Shri Prasadi Lal

who has been absolved of all the charges were working on the same

post and departmental proceedings on account of same acts for

different period were initiated. How in case of Prasadi Lal it was not his

duty to check about the payment of Kisan Vikas Patras and National

Savings Certificates while remitting the amount to the sub post office

and petitioner has committed lapse while performing the same duty has

not been explained. If it was not within the scope of duty of the

petitioner to check as for which Kisan Vikas Patras and National

Savings Certificates the payment was to be released as the record was

in sub post office and the duty of the petitioner was to ensure only that

the sub post office had sufficient cash and stamps and other postal

material, then no misconduct can be imputed against the petitioner. It

is apparently a case of no evidence against the petitioner and the

disciplinary and appellate authority and even the Tribunal has passed

the orders mechanically. The error in the orders are such which are

liable to be corrected in the facts and circumstances and the

punishment imposed upon the petitioner cannot be sustained.

Consequently, the writ petition is allowed. The order of the

disciplinary authority dated 31st July, 1998 and the order dated 17th

February, 1999 of the appellate authority and the order dated 7th

February, 2002 of the Central Administrative Tribunal, Principal Bench

and the order dated 1st April, 2002 passed in R.A No.74/2002 of the

petitioner are set aside. The punishment imposed upon the petitioner is

also quashed. Consequently, the amount recovered from the petitioner

pursuant to the penalty order dated 31st July, 1998 is liable to be

refunded to the petitioner within four weeks from the receipt of copy of

this order. The petitioner shall also be entitled for a cost of Rs.10,000/-

in the facts and circumstances. With these directions the writ petition is

disposed of.

ANIL KUMAR, J.

FEBRUARY 16, 2010                               MOOL CHAND GARG, J.
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