Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK W.P.(C) No.3221 OF 2016 In the matter of an application under Articles 226 and 227 of the Constitution of India. --------------- Secretary-cum-Director General of Post & Others ..… Petitioners -Versus- Balakram Hembram & Another ….. Opp. Parties For Petitioner : M/s. S. B. Panda, CGC along with Mr. P.K. Parhi, DSGI For Opp. Parties : M/s. T. P. Tripathy. P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI AND HONOURABLE MR. JUSTICE B.P.SATAPATHY DATE OF HEARING & DATE OF JUDGMENT ON:: 31.01.2023 // 2 // B.P.SATAPATHY, J. Order passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack on 26.02.2015 in O.A No.925 of 2012 is under challenge by the Petitioners, who are the respondents before the Tribunal. The Opposite Party No.1 challenging the order of punishment passed against him on 20.05.2010
Legal Reasoning
by the Petitioner No.4 and confirmed by the appellate authority as well as the Revisional Authority vide order dated 03.01.2011 and 17.10.2011 approached the Tribunal in O.A No.925 of 2012. The Tribunal vide its order dated 26.02.2015 under Annexure-3, when set aside the orders passed by the authorities and allowed the Original Application, the Petitioners being aggrieved by the said order have approached this Court in the present writ Petition. 2. The factual matrix giving rise to filing of the present case is that the Opposite Party No.1 while working as P.A., Rairangapur, H.O, the proceeding was initiated against him vide Memorandum dated // 3 // 14.09.2009 under Rule-16 of the CCS (CC&A), Rules, 1965. The charges framed against the Petitioners under Article-I is reproduced hereunder:-
Legal Reasoning
“Sri Balakram Hembram PA Rairangpur HO while working as PA Baripada HO during the period from 27-05-99 to 04-06-2009 was working as ledger Asst. No.9 Baripada HO for the period from 27-05- 99 to 31-07-99, 23-08-09 to 03-01-2000,15-01-00 to 27-01-01,14-02-01 to 19-03-01,01-04-01 to 12- 04-01 and 27-04-01 to 09-01-02 and dealing with SB Accounts of Kadualbandh BO in account with Sankerko SO under Baripada HO. Sri Hembram failed to call for SB Passbooks of Kadulbandh BO including those mentioned below which were not received at Baripada HO by 15-07-99 & 15-07- 2001 for posting of annual interest for the year 1998-99 and 2000-01 respectively and verification of their balances with Baripada HO ledger balance, by preparing the list of such SB accounts in between 15-07-99 to 20-07-99 and 15-07-01 to 20- 07-01 and sending the list to the IPOs Barsahi on 20-07-99/21-07-99 20-07-01/21-07-01 and respectively or thereafter for collection of those passbooks in contravention of the provision of Rule- 75 of POSB Manual Vol-I. Due to such in-action on the part of the said Sri Hembram, neither the annual interest could be posted nor the balances of those passbooks in which fraud was committed by EDBPM Kadualbandh BO by adopting the Modus Operandi of making entry of deposit(s) and withdrawal(s) etc in the passbook(s) could be verified with Baripada HO ledger balance. Therefore, not only the fraud committed by the EDBPM Kadualbandh BO prior to 15-07-99 could be detected by successful investigation but also fraud committed after 15-07-99 could come to light till 03-01-16. Thus, it is impugned that the said Sri Balakarm Hembram contributed to the loss due to fraud committed by the EDBPM Kadualbandh BO with effect from 15-07-99 to the tune of Rs.82585 in toto, in those passbooks mentioned below to the extent noted against each which remained undetected till 03-01-06 and when detected, the // 4 // total loss due to fraud came to Rs.421628.40 in 11Lno.of SB/RD/RPLI accounts”. The Opposite Party No.1 on receipt of the charges though submitted his reply, but Petitioner No.4 being the disciplinary authority, after receipt of the reply imposed the order of punishment vide his order dated 20.05.2010 (Annexure-A/2 to the Original Application) for recovery of Rs.21,000/- from the monthly salary of the Opposite Party No.1 @ Rs.1500/- per months. 2.1. Challenging the order of punishment passed by the Petitioner No.4, Opposite Party No.1 preferred an appeal vide Annexure-A/3 to the Original Application. But the appellate authority vide order dated 03.01.2011 under Annexure-A/4 to the Original Application when rejected the appeal by confirming the order of punishment, Opposite Party No.1 moved a revision before the Petitioner No.2 under Annexure-A/5 to the Original Application. The Revisional Authority as like the appellate authority when dismissed the revision by confirming the order of punishment so passed // 5 // against the Opposite Party No.1 vide his order dated 17.10.2011 under Annexure-A/6, Opposite Party No.1 challenging the orders so passed under Annexures-A/2, A/4 and A/6 approached the Tribunal in O.A No.925 of 2012. 2.2. The Tribunal without proper appreciation of the stand taken by the Petitioners in the counter affidavit when quashed the orders passed against the Opposite Party No.1 under Annexures-A/2, A/4 and A/6 vide the impugned order dated 26.02.2015 under Annexure-3, the Petitioners have filed the present Writ Petition challenging the said order of the Tribunal. 3. Mr. Satyabrata Panda, learned Central Government Counsel appearing along with Mr. P.K. Parhi, learned Deputy Solicitor General of India contended that in the proceeding initiated against the Opposite Party No.1 on 14.09.2009 under Annexure-A/1, he was charged with regard to inaction on his part in not making necessary entry of the annual interest in various passbooks in which fraud was // 6 // committed by EDBPM, Kadulabandh, B.O. by adopting the Modus Operandi of making entry of deposit(s) and withdrawal(s) etc. in the passbook(s) to be verified with Kadulabandh, B.O. Therefore, not only the fraud committed by Kadulabandh, B.O prior to 15.07.1999 could be detected by successful investigation but also fraud committed after 15.07.1999 could come to light till 03.01.2006. Accordingly it was imputed that the Opposite Party No.1 contributed to the loss due to fraud committed by the EDBPM Kadulabandh, B.O w.e.f. 15.07.1999 to the tune of Rs.82585/- in toto. 3.1. On receipt of the charges, the Opposite Party No.1 also submitted his reply on 23.09.2009. Since the proceeding in question was initiated under Rule-16 of the CCS(CC&A) Rules, 1965, Petitioner No.4 as the disciplinary authority, after going through the reply of Opposite Party No.1, imposed the order of punishment by holding the Opposite Party No.1 liable for his inaction in not verifying the discrepancy in the pass books maintained by the EDBPM, Kadulabandh, // 7 // B.O. While holding so, Petitioner No.4 imposed the punishment for recovery of Rs.21,000/- from the monthly salary of the Opposite Party No.1 vide order dated 20.05.2010. Even though Opposite Party No.1 preferred an appeal and a revision thereafter against the order of punishment, not only the appellate authority vide his order dated 03.01.2011 but also the Revisional Authority vide order dated 17.10.2011, while dismissing the appeal and revision confirmed the order of punishment. 3.2. Accordingly, it is contended that in view of such concurrent finding of the disciplinary authority as well as of the appellate authority and revisional authority, learned Tribunal should not have interfered with the order of punishment passed against the Opposite Party No.1. 3.3. It is also contended that since the Opposite Party No.1 acted contrary to the provision of Rule-75 of the POSB Manual Vol-I and he acted detrimental to the interest of the department, the // 8 // disciplinary authority rightly by holding him liable for such contributory negligence, imposed the punishment by directing recovery of Rs.21,000/- from his salary. 3.3. Accordingly, it is contended that the order of punishment passed against the Opposite Party No.1 by the disciplinary authority under Annexure-A/2 and confirmed by the appellate authority and revisional authority vide Annexures-A/4 and A/6, were rightly passed and the Tribunal without proper appreciation of the stand taken by the Petitioners in their counter affidavit allowed the Original Application by quashing the orders vide the impugned order dated 26.02.2015. 4. Mr. T.P. Tripathy, learned counsel appearing for the Opposite Party No.1 on the other hand contended that from the charge memo issued under Annexure-A/1, it is quite apparent that Opposite Party No.1 was issued with the charge memo only on the ground of contributory negligence and there is no specific allegation against the Opposite Party No.1 with regard to any misappropriation. The Opposite Party // 9 // No.1 was so charge sheeted only on the ground of his inaction in verifying the entries made in the passbooks and the fraud committed by the EDBPM, Kadulabandh, B.O. Since the charge memo does not indicate any specific allegation with regard to any misappropriation caused by the Opposite Party No.1 and thereby causing loss to the department, the Tribunal rightly interfered with the order of punishment passed under Annexure- A/2 and confirmed vide order under Annexures-A/4 and A/6. The Tribunal relying on its own decision in the case of Sukomal Bag vrs. Union of India and Others, (O.A No.634 of 2009), confirmed by this Court in W.P.(C) No.4343 of 2011 as well as the decision of the Hon’ble Apex Court quashed the order of punishment passed against Opposite Party No.1. Accordingly, it is contended that the Tribunal has rightly interfered with the order of punishment and there is no illegality or irregularity in the said order. 5. We have heard Mr. Satyabrata Panda, learned Central Government Counsel appearing along // 10 // with Mr. P.K.Parhi, learned Deputy Solicitor General of India and Mr.T.P. Tripathy, learned counsel appearing for the Opposite Party No.1. On the consent of the learned counsels appearing for the Parties, the matter was heard finally and disposed of at the stage of admission. 6. Having heard learned counsel for the Parties and after going through the materials available on record, it is found that the Opposite Party No.1 was issued with the charge memo under Annexure-A/1 only on the ground that because of his inaction in not verifying the passbooks of Kadulabandh, B.O, indirectly assisted the ADBPM of the B.O. in committing fraud, and thereby causing loss to the Department to the tune of Rs.82,585/-. 6.1. It is also found that on receipt of the charge memo, the Opposite Party No.1 submitted his reply inter alia taking the ground that after his joining at Baripada H.O. on transfer from Berhampur (G.M) the interest statement of the year 1998-1999 was not // 11 // prepared and accordingly he called for the pass books in which there was balance difference or minus balance. The Opposite Party No.1 also took the stand that verification of balance as per Rule-75 of SB manual Volume-I was not done due to non-preparation of interest statement of 1998-99. But Petitioner No.4, who is the disciplinary authority, without causing any further enquiry and without assigning any justifiable reason held the Opposite Party No.1 liable and accordingly imposed the punishment for recovery of Rs.21,000/- from his salary. 6.2. It is also found that though Opposite Party No.1 in his appeal as well as revision took similar ground that on the ground of contributory negligence, the Opposite Party No.1 cannot be saddled with any punishment for recovery of any amount, but the appellate authority as well as the revisional authority did not take into account the said stand in its proper perspective while confirming the order of punishment. // 12 // 6.3. It is also found from the records that the Tribunal relying on the order passed by the Tribunal in the case of Sukomal Bag vs. Union of India and Others and the decisions reported in the case of C.N. Harihara Nandanan vrs. Presidency Post Master, Madras and another reported in (1988) 8 Administrative Tribunal Cases-673, J.M. Makwana Vrs. Union of India and Others reported in 2002(I) ATJ 283 as well as the decision of the Hon’ble Apex Court in the case of SI Ruplal and Others vrs. Lt. Governor through Chief Secretary Delhi and Others reported in (2000) I SCC 644, came to a finding that the punishment imposed on the Opposite Party No.1 on account of the fraud committed by another employee cannot sustain legal scrutiny. This Court therefore is of the view that no illegality or irregularity has been committed by the Tribunal while interfering with the order of punishment passed against Opposite Party No.1. The Tribunal relying on the decisions as cited (supra) rightly came to the conclusion that on the ground of contributory negligence, no order of // 13 // punishment can be passed. While holding so, this Court is not inclined to entertain the prayer as made in the Writ Petition and dismiss the same accordingly.
Decision
However, there shall be no order as to costs. JUDGE DR. B.R.SARANGI, J. I agree. …………….………….. B.P.SATAPATHY, …………….………….. DR. B.R. SARANGI, JUDGE Orissa High Court, Cuttack The 31st of January, 2023, (Subrat)