The Union of India v. M. Mohamed Yacoob

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 14.05.2009CORAM THE HONOURABLE MR. JUSTICE P.K.MISRAandTHE HONOURABLE MR. JUSTICE D.HARIPARANTHAMANW.P.No.27141 of 20081.The Union of India Rep. by the Director of Postal Services Chennai City Region, Chennai – 600 002.

The Sr.Superintendent of POs., Chennai City South Division, Chennai – 600 017.... PetitionersVS.1.M.Mohamed Yacoob2.The Registrar Central Administrative Tribunal Madras Bench, High Court Buildings, Chennai – 600 104.... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, callingfor the entire records on the file of the 2nd respondent passed in theimpugned order dated 17.07.2008 in O.A.No.844 of 2007.For Petitioners: Mr.M.Damodharan Senior Panel Counsel For Respondent – 1:Mr.R.Malaichamy

O R D E R D.HARIPARANTHAMAN, J.The writ petitioners are Postal Department. The firstrespondent herein was employed as a Sub Post Master in Jafferkhanpet https://hcservices.ecourts.gov.in/hcservices/ Post Office during August 2002 to November 2003. OneSmt.N.Sundaribai was a GDS MP, in the same post office. OneShri.P.Arumugam was appointed by the said Smt.N.Sundaribai in herplace during her leave period. The said P.Arumugam issued fictitiousmoney orders by misusing the oblong stamp of the post office that wasin the custody of first respondent during August 2002 to November2003 and thereby caused heavy loss to the Department. 2.A charge sheet dated 31.08.2004 was issued against thefirst respondent. The crux of the charge was that he was guilty ofserious negligence and dereliction of duty as he had given fullfreedom to have accessibility to the oblong money order stamp to theoutsider P.Arumugam and that he entrusted the work of preparing the Register list and High Value Money Order list to the outsider, resulting in the said P.Arumugam issuing fictitious money orderscausing loss to the Department.

The first charge was that the said P.Arumugam issued 10bogus money orders resulting in the loss of Rs.48,600/- to the Department. In the second charge, it was alleged that the saidArumugam issued 27 bogus money orders causing loss to the tune ofRs.1,32,575/.

An enquiry was conducted and the Enquiry Officer in hisreport dated 03.05.2006 held that both the charges were proved.

Based on the findings of the Enquiry Officer, the secondrespondent imposed the punishment of compulsory retirement by anorder dated 28.06.2006. The appeal preferred to the first petitionerwas dismissed by an order dated 18.10.2007.

The first respondent filed Original Application inO.A.No.844 of 2007 before the Central Administrative Tribunal(shortly the Tribunal), the second respondent herein, to quash theaforesaid orders and sought consequential direction to reinstate himin service with all benefits.

The Tribunal passed an order dated 17.07.2008 inO.A.No.844 of 2007, setting aside the order of compulsory retirementimposed on the first respondent and directed reinstatement of thefirst respondent in service.

The Tribunal deprived the back wages during the periodfrom the date of his compulsory retirement till the date of hisretirement and directed to count the said period for all retiralbenefits, since in the order of the Tribunal, it is held as follows: https://hcservices.ecourts.gov.in/hcservices/ "However, this order should not beinterpreted as one totally exonerating the applicantfrom the charges".

The Department has now filed the present writ petition toquash the order of the Tribunal dated 17.07.2008 passed in O.A.No.844of 2007.

The Tribunal interfered with the order of the compulsoryretirement mainly on the following three reasons:-(i)The statements made by the first respondent duringpreliminary enquiry were relied on by the Enquiry Officer to recordhis findings, without the same being read out to him and got admittedby him. (ii)The said P.Arumugam, who was the culprit responsiblefor issuance of bogus money orders was not examined as witness in theenquiry. (iii) While Shri. Ganesan and Shri. Lakshmanan worked as Sub Post Masters at the same post office in different periods, thesaid Arumugam issued bogus money orders during their period also. But only recovery was ordered in their case and no punishment wasimposed on them.

Heard both sides. Both made the same submissions whichwere advanced before the Tribunal. Reliance placed by the EnquiryOfficer/Disciplinary Authority on the statements made by the firstrespondent during preliminary enquiry could not be faulted. When weperused the original files, we found that those statements weremarked in the enquiry and moreover, the first respondent did notdispute the use of oblong stamp by the said P.Arumugam and thepreparation of High Value Money Order list and Register list by thesaid P.Arumugam. Hence, no prejudice is caused to the firstrespondent and it was not the case of the first respondent that thosestatements were obtained by force. Those statement were his ownstatements.

Even the learned counsel for the first respondent doesnot dispute the fact of statements being given by the firstrespondent during the preliminary enquiry. In fact, the charge sheetalso has referred to those statements in the following words: "In the statement dated 28.1.04 and 29.1.04of Sri.M.Mohamed Yacoob, given before ASP Sub Division https://hcservices.ecourts.gov.in/hcservices/ I he has stated that Sri.P.Arumugam has fraudulentlyimpressed the Oblong Money Order stamp of Jafferkhanpet PO on the bogus Money Orders without hisknowledge and has managed to issue bogus Money Orders. He further stated the Sri.P.Arumugam prepared HighValue Money Order list and Register list and includedthe bogus Money Orders in the Register bag and theoutsider himself has adviced the Money orders in hisown handwriting and affixed his initials in the placeof PA and Postmaster".Therefore, finding fault with the Enquiry Officer for placingreliance on the statements made by the first respondent duringpreliminary enquiry by the Tribunal has no substance.

The other reason given by the Tribunal for interferingin the order of compulsory punishment namely, the culprit P.Arumugamwas not examined as a witness in the enquiry, also does not appear tobe correct.

The learned counsel for the petitioners has brought toour notice that criminal prosecution was lodged against the saidP.Arumugam and he was absconding. In those circumstances, the Department could not be faulted for non-examination of the saidP.Arumugam.

Moreover, we feel that the examination of P.Arumugam isnot relevant, since the charge was not that the first respondent wasalso involved in the commission of issuing bogus money orders alongwith the said P.Arumugam. Since the charge was that he failed toexercise proper supervision over the said P.Arumugam therebypermitting him to use oblong money order stamp and to prepare HighValue Money Order list and Register list and the said P.Arumugamissued bogus money orders and caused loss to the Department. Asstated above, the first respondent himself admitted that the saidP.Arumugam used the oblong money order stamp and the said P.Arumugamprepared the Register list and High Value Money Order list, whilethose duties did not pertain to him. Further, it is not a criminaltrial and it is only a departmental enquiry and the non-examinationof the said P.Arumugam in the departmental enquiry could not vitiatethe disciplinary proceedings. Hence, this reason of the Tribunal forinterfering in the order of punishment was also not acceptable to us.

However, the impugned order of the Tribunal could besustained based on the third reason, i.e. the first respondent wasdiscriminated in the matter of punishment, with certain modification. The Department itself admitted in the affidavit filed in support of https://hcservices.ecourts.gov.in/hcservices/ this writ petition in paragraph No.14 in the following words: "that no disciplinary action was initiatedagainst the similarly placed persons and instead onlyrecovery was ordered against them"In paragraph No.19(f) of the affidavit, the petitionershave stated as follows: "(f) The 2nd respondent on non application ofmind has come to conclusion that the petitioner /department has not taken any action against the otherslike Sri.T.R.Ganesh and Sri.S.Lakshmanan who worked inthe Jaffarkhanpet Post office for short period. Inthe instant case, the department has also taken actionagainst said two officials. The said two officialshave credited the loss amount in respect of the issueof bogus money orders, which were happened duringtheir period of officiation".

The learned counsel for the petitioners relied on thedecisions of the Honourable Supreme Court in Ajay Jadhav Vs.Government of Goa reported in 1994 (4) LLN 73 and in M.Singh Vs.State of Haryana reported in 2008(4) LLN 113 in support of hissubmission that the petitioners should not discriminated the firstrespondent in imposing the punishment of compulsory retirement whileothers were imposed with the penalty of recovery alone. It wasfurther contended that the action of the petitioners are arbitraryand violative of Article 14 of the Constitution. In any event, itwas submitted that when the Tribunal thought it as a fit case tointerfere in punishment and to order reinstatement, that toodepriving entire back wages, this Court could not exercise itsextraordinary jurisdiction under Article 226 to interfere with thesame.

The learned counsel for the petitioners argued thatsince the first respondent did not come forward to recoup the losscaused by the said P.Arumugam due to his lack of supervision, the Department has no other option but to initiate disciplinaryproceedings, while the others readily agreed for recovery towards theloss caused to the Department. Further, he pointed out that the saidP.Arumugam issued large number of bogus money orders while workingunder the first respondent and comparatively it was less number ofbogus money orders in the case of others. The learned counselpointed out that the recovery of Rs.24,480/- was imposed on Smt.N.Sundaribai, Rs.2,000/- from Shri. Ganesan and Rs.26,074/- from Shri. Lakshmanan, while the loss suffered was heavy due to negligence https://hcservices.ecourts.gov.in/hcservices/ of the first respondent. The learned counsel also pointed out thefindings of the Tribunal to the effect that the order of the Tribunalshould not be interpreted as one totally exonerating the firstrespondent from the charges and the Tribunal deprived back wages onlyon that score.

Taking into account all those facts, we are not inclinedto interfere with the order of reinstatement ordered by the secondrespondent Tribunal. However, we direct the petitioners to recoverthe amount of loss caused to the Department due to the negligence ofthe first respondent, but in easy installments.