Union Of India vs Jyoti K. Desai W/O. Kamalnayan G. ...
2023 Latest Caselaw 3043 Guj

    C/SCA/15690/2018                             JUDGMENT DATED: 19/04/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


              R/SPECIAL CIVIL APPLICATION NO. 15690 of 2018
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 15691 of 2018
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 15692 of 2018



FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI                            Sd/-
and
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR                            Sd/-
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1    Whether Reporters of Local Papers may be allowed                 NO
     to see the judgment ?

2    To be referred to the Reporter or not ?                          NO

3    Whether their Lordships wish to see the fair copy                NO
     of the judgment ?

4    Whether this case involves a substantial question                NO
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                         UNION OF INDIA & 2 other(s)
                                   Versus
                 JYOTI K. DESAI W/O. KAMALNAYAN G. DESAI
================================================================
Appearance:
MR HARSHEEL D SHUKLA(6158) for the Petitioner(s) No. 1,2,3
MS SUNITA S CHATURVEDI(2572) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
          and
          HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                             Date : 19/04/2023

                    COMMON ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR)

C/SCA/15690/2018 JUDGMENT DATED: 19/04/2023

1. As common issue is involved in this batch of petitions, we have heard all the petitions together and dispose of the same by this common judgment. For the disposal of this group of petitions, we have taken up Special Civil Application No.15690 of 2018 as the lead matter and referred to the facts contained in the said petition.

2. The Special Civil Application No.15690 of 2018 is filed by the Union of India through the Chief Post Master General, Gujarat Circle, Ahmedabad and others under Articles 226/227 of the Constitution of India challenging the judgment and order dated 22.2.2018 passed by the Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad, in the Original Application No.271 of 2017, whereby the application filed by the respondents came to be allowed and the Tribunal was pleased to quash and set-aside the charge memo dated 13.8.2016 and the order dated 9/10.1.2017 passed by the Senior Superintendent of Post Offices, Vadodara West Division, Vadodara, as well as the order dated 18.5.2017 passed by the Director, Postal Services, Vadodara Region, Vadodara.

3. As per the facts of the case, the respondent was appointed as Postal Assistant at Valsad Post Office on 14.7.1983 and thereafter the respondent was transferred to GEB Post Office, Vadodara for the period from 2.6.2012 to 2.6.2016. That while working as Postal Assistant/SPM at the GEB Post Office, Vadodara, several Recurring Deposit Accounts were prematurely closed by the SAS agent. It also came to the notice that the said

C/SCA/15690/2018 JUDGMENT DATED: 19/04/2023

agent was allowed as messenger to close Eight Recurring Deposit Accounts, withdraw loan from one Recurring Deposit Account and withdraw amount from two Savings Bank Accounts without the knowledge of the depositors. In this regard, several complaints were received from the depositors about the withdrawal of amount from their accounts which was not within their knowledge. On receiving such complaints, an investigation was carried out and a report was submitted to the Post Master General, whereby it came to the notice of the authorities that large scale fraud was committed by the SAS agent. Hence, an FIR came to be registered against the agent on 8.4.2016. During the course of investigation, it was noticed that the respondent, while working as in-charge of the concerned post office, allowed withdrawals through an agent in contravention of the rules. The agent took the benefit of such dereliction on the part of the respondent and misappropriated the amount of these withdrawals. For the said act of misconduct and dereliction in duty, a charge memo came to be issued against the respondent under rule 16 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 (for short, the 'CCS Rules') on 13.8.2016. The respondent filed her reply to the said charge memo on 9.9.2016. Thereafter, departmental proceedings came to be initiated against the respondent and after affording opportunity of hearing to the respondent, the Senior Superintendent of Post Offices, Vadodara West Division, Vadodara, vide order dated 9/10.1.2017 imposed punishment of recovery of Rs.5,84,587=00 from her pay and allowances and withholding of increment for a period of 12 months without cumulative effect.

C/SCA/15690/2018 JUDGMENT DATED: 19/04/2023

4. Being aggrieved and dissatisfied with the order passed by the Senior Superintendent of Post Offices, the respondent challenged the said order by way of an appeal before the Director, Postal Services, Vadodara Region, Vadodara. The said appeal came to be dismissed by the appellate authority vide order dated 18.5.2017.

5. Being aggrieved and dissatisfied with the order passed by the appellate authority, the respondent preferred Original Application No.271 of 2017 before the Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad. The Tribunal, vide order dated 22.2.2018, was pleased to allow the said Original Application with cost of Rs.25,000=00.

6. Being aggrieved and dissatisfied with the order passed by the Tribunal, the petitioners have preferred the present petition before this Court with the following prayers :

"(A) Your Lordship may be pleased to admit and allow this petition;

(B) Your Lordships may be pleased to issue a writ of certiorari and/or any other appropriate writ, order or direction in the nature of certiorari, quashing and setting aside the order dated 22.2.2018 passed in Original Application No.271 of 2017 by the Ld. Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad.

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(C) Pending admission, final hearing and disposal of the present petition, Your Lordships may be pleased to stay the execution, implementation and operation of order dated 22.2.2018 passed in Original Application No.271 of 2017 by the learned Central Administative Tribunal, Ahmedabad Bench, Ahmedabad.

(D) An ex-parte ad-interim relief in terms of paragraphs 8(B) and 8(C) above may kindly be granted.

(E) Any other and further reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case."

7. Learned advocate Mr.Harsheel D.Shukla appearing for the petitioners has submitted that the Tribunal has not appreciated the fact that the respondent, while working as Postal Assistant and in-charge of the concerned post office, allowed withdrawals through an SAS agent in contravention of the rules, thereby benefiting the agent in misappropriating the amount of these withdrawals. The respondent has, therefore, violated the provisions of rule 33(1) Note 1 (ii) of the POSB Manual. As per the said provision, any SAS agent cannot act as an agent or messenger of a depositor for the purpose of withdrawal from his/ her account. But, in the instant case, the respondent has allowed closure/withdrawal on those forms wherein the SAS agent was appointed as messenger and facilitated him to withdraw the amount. Learned advocate submitted that the order passed by the Tribunal is a non-speaking order sans reasons. The Tribunal ought to have considered the grave

C/SCA/15690/2018 JUDGMENT DATED: 19/04/2023

misconduct and irregularity on the part of the respondent. Even though the charges stood established against the respondent, the Tribunal has, without assigning reasons, not only quashed and set-aside the departmental proceedings but imposed costs.

8. In such circumstances, learned advocate Mr.Shukla requested this Court to allow the petitions and to quash and set- aside the orders passed by the Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad, in the respective Original Applications.

9. Learned advocate Ms.Sunita Chaturvedi appearing for the respondent has submitted that the Tribunal has just and in a proper manner appreciated the facts and has assigned valid reasons while passing the order as no amount has been lost by the Government in the said transactions as the amounts were payable to the Recurring Deposit Holders. The only question that arises in the present petitions is with regard to premature payment being made. However, premature payment or withdrawal is allowed as per the prevailing rules and interest is calculated as per the prevailing rate. There is no any financial or actual loss caused to the Government department. Merely based on imagination, the respondent has been held guilty. Even, there is no role played by the respondent in withdrawal of the amounts as the respondent has already paid the amounts by way of cheque in the name of the account holder. Even if any scam or fraud has been committed by an SAS agent, then criminal proceedings are required to be initiated against the agent. The respondent has nothing to do in appointment of agents. Learned

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advocate submitted that no preliminary inquiry was initiated and without any material or evidence, straightway the respondent was held guilty. There was violation of the principles of natural justice. The reply was submitted before the disciplinary authority but the disciplinary authority has not considered the same and merely with a view to harass the respondent, recovery order came to be passed. The Tribunal has assigned proper and legal reasons. Hence, learned advocate requested this Court to dismiss the present petitions with costs.

10. Having heard the learned advocates for the parties and having gone through the materials on record as well as the orders passed by the Senior Superintendent of Post Offices, Vadodara West Division, Vadodara, and the Director Postal Services, Vadodara Region, Vadodara, it appears that the charges levelled against the concerned respondents were found to be proved by the disciplinary authority and fixing their negligence, the following orders of punishment came to be passed under the CCS Rules against the respective respondents :

Smt. J.K.Desai Recovery of Rs.5,84,587=00 is hereby (SCA No.15690 of 2018) imposed in 23 installments of Rs.25,000=00 each and rest 1 installment of Rs.9,587=00 from the pay and allowance of Smt. J.K.Desai, the then SPM GEB now PA Fatehganj HO with immediate effect.

The next increment of Smt. J.K.Desai, the then SPM GEB now PA Fatehganj HO be withheld for the period of 12 months without cumulative effect.

C/SCA/15690/2018 JUDGMENT DATED: 19/04/2023

Smt. S.N.Patel Recovery of Rs.6,82,755=00 is hereby (SCA No.15691 of 2018) imposed in 27 installments of Rs.25,000=00 each and rest 1 installment of Rs.7,755=00 from the pay and allowance of Smt. S.N.Patel, the then PA GEB now PA Fatehganj HO with immediate effect.

The next increment of Smt. S.N.Patel, the then PA GEB now PA Fatehganj HO be withheld for the period of 12 months without cumulative effect.

Smt. S.N.Patel Recovery of Rs.69,362=00 is hereby (SCA No.15692 of 2018) imposed in 2 installments of Rs.25,000=00 each and rest 1 installment of Rs.19,362=00 from the pay and allowance of Smt. S.N.Patel, the then PA GEB now PA Fatehganj HO with immediate effect.

The next increment of Smt. S.N.Patel, the then PA GEB now PA Fatehganj HO be withheld for the period of 6 months without cumulative effect.

10.1. On going through the order passed by the Tribunal, which is produced at Annexure-A page-14 of the compilation, it is an admitted fact that no amount has been lost by the Government in the alleged transactions as the said amounts were payable to the Recurring Deposit holders in their respective accounts. Now, the only question remains is that the amount was prematurely withdrawn. It is the case of the respondent that premature withdrawal is allowed as per the rules and the interest is calculated as per the prevailing rate. The same is contractual in nature and nothing wrong has been done by the respondent.

C/SCA/15690/2018 JUDGMENT DATED: 19/04/2023

10.2. Further, on going through the order passed by the disciplinary authority, it appears that the disciplinary authority arrived at the conclusion that the respondents allowed withdrawal transaction which was signed by the SAS agent as a messenger in the withdrawal form and the messenger carried out the transaction by violating the provisions of rule 93, Note 1 and rule 113 (iii) read with rule 33(1) Note 1 (ii) of the POSB Manual and the same resulted into wrong payment causing loss to the Government. Thus, the respondent failed to ensure devotion to duty to the Government. There is nothing on record to show that loss has been caused to the Government or there was no valid reason or any material available with the Inquiry Officer or the disciplinary authority to come to the conclusion that loss was caused to the Government. Thus, the order passed by the disciplinary authority for recovery of amounts from the respective respondents is without any evidence or material available on record, on the basis of which the disciplinary authority come to the conclusion that loss has been caused to the Government.

10.3. But the disciplinary authority found that as per the rules withdrawal is not allowed through messenger, which is against the Postal Manual and the said fact of withdrawal through messenger is not disputed by the respondents also. Such withdrawal allowed through messenger is nothing but dereliction in duty. Even if the case of the petitioner is considered for dereliction in duty, the disciplinary authority has imposed punishment of withholding of next increment for a period of 12 months/6 months respectively without cumulative effect.

C/SCA/15690/2018 JUDGMENT DATED: 19/04/2023

However, the disciplinary authority has passed an order of recovery of the amount even without considering the fact that no loss has been caused to the Government and the order is sans reasons and without any material. To that extent, the Tribunal has not committed any error in quashing and setting aside the order passed by the disciplinary authority but for quashing and setting aside the order of stoppage of increment, no reasons are assigned. To that extent, an error has been committed by the Tribunal and even there is no case of the department that the respondents have committed any fraud and they have misappropriated any amount. Whatever allegations made are against the agents and criminal proceedings have also been initiated against the agents and the respondents have dealt with the agents, which was authorized or recognized by the department.

11. In view of the above, in absence of any allegation or evidence of fraud against the respondents, the respondents cannot be held guilty of causing any financial loss to the Government. Whichever irregularity is found, it is on account of negligence of dereliction in duty in allowing the withdrawal of the amount through messenger. The only thing done by the respondents is that they allowed premature withdrawal. For that, punishment of stoppage of increment is imposed. It is not the case of the petitioner that premature withdrawal is not allowed as per the rules.

12. In such circumstances, it appears that the findings recorded by the Tribunal for quashing and setting aside the

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order of recovery are in accordance with law and, therefore, the same does not call for any interference by this Court. However, the cost of Rs.25,000=00 imposed by the Tribunal while allowing the Original Application filed by the respondents is required to be interfered with as no any reason has been assigned for imposition of the cost and no any opportunity of hearing was afforded to the concerned officers. Even they are not party to the proceedings. So far as the present petitioners are concerned, they have initiated departmental proceedings as well as criminal proceedings against the agents. Therefore, considering the same, the order of imposition of cost is required to be interfered with and the same is hereby ordered to be quashed and set-aside.

12. With the above, the present petitions are partly allowed as under :

(i) The order dated dated 22.2.2018 passed by the Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad, so far as imposing cost of Rs.25,000=00 to the erring officials of the petitioner department is concerned, is quashed and set-aside.

(ii) The order dated 9/10.1.2017 passed by the Senior Superintendent of Post Offices (petitioner no.3) imposing punishment of stoppage of next increment for a period of 12 months without cumulative effect to the concerned respondent and upheld by the Director, Postal Services (petitioner no.2) vide order dated 18.5.2017 is concerned, is hereby confirmed.

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(iii) The order dated 9/10.1.2017 passed by the Senior Superintendent of Post Offices (petitioner no.3) imposing punishment of recovery of the amount from the concerned respondent and upheld by the Director, Postal Services (petitioner no.2) vide order dated 18.5.2017 is concerned, is hereby quashed and set-aside.

13. Rule issued in each of the petitions is made absolute to the aforesaid extent.

(VIPUL M. PANCHOLI, J.)

(HASMUKH D. SUTHAR, J.) /MOINUDDIN