B. Venkateswara Rao, Judicial Member:
1. This application has been filed under Sec. 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
âto set aside Memo no. VIG/15-03/12-13 dated 28.06.2012 passed by the 3rd respondent and pass such other orders as are necessary to meet the ends of justice.â
2. The fact of the case are as follows:
The applicant is presently working as Postal Assistant, Naghalnagar SO Dindigul Division. He prays that the order dated 28.06.2012 passed by the 3rd respondent confirming the order of recovery of Rs. 75000/- at the rate of Rs.2,500/- p.m. passed by the 4th respondent vide communication dated 06.02.2012, from his salary. It is stated by the applicant that the above recovery had been ordered for his alleged negligence in duty while he was functioning as Officiating Post Master in Dindigul HO from 18.01.2008 (AN) to 24.01.2008(AN). It is further stated by the applicant that after receipt of show cause notice dated 19.10.2010, he submitted a detailed representation dated 01.11.2010, requesting the authorities not to initiate any disciplinary proceeding. Thereafter, a charge memo under Rule 16 of the CCS(CCA) Rules, 1965 was issued alleging that (i) the applicant while officiating as Postmaster Dindigul during the period from 18.01.2008 (AN) to 24.01.2005 (AN) sanctioned additional credit to the tune of Rs. 5,00,000/ over the initial credit without verifying the genuineness of the claim and (ii) the applicant failed to note that the Sub Post Master Vedasandur has kept cash of Rs. 1,77,794.80 on 22.01.2008 against the minimum cash balance of Rs. 80,000/- without furnishing particulars of liabilities for keeping excess cash in the daily account of Vedasandur SO dated 22.01.2008. ItÂ is averred by the applicant that he submitted a detailed representation dated 03.03.2011 denying the imputations in the Charge Memo and requested the 4th respondent to conduct an oral inquiry under Rule 16 (1) (A) of the CCS(CCA) Rules, 1965 in the interest of justice. It is contended by the applicant that the 4th respondent rejected the applicants representation by order dated 06.02.2012 and ordered recovery of Rs. 75,000/- at the rate of Rs. 2500/- p.m. for 30 months, commencing from payment of salary for the month of may 2012. It is also contended by the applicant that against the order of recovery he submitted an appeal dated 14.03.2012, requesting the 3rd respondent to set aside the recovery order passed by the 4th respondent. However, the 3rd respondent rejected the representation of the applicant vide communication dated 28.06.2012. The applicant further contended that he was not allowed to verify the document in question and the same was kept behind the applicants back. The main contention of the applicant is that without conducting an inquiry as asked for by him, the action of the respondents in imposing recovery of Rs. 75000/- cannot be sustained. The applicant also contended that it is not clear as to how the quantum of recovery was decided being the share of the applicant and the order of penalty is also a non speaking order and therefore the same has to be set aside.
3. Upon notice the respondents have entered appearance and filed a detailed reply denying the contentions of the applicant and submitted that the applicant was required to verify the genuineness of the additional credit and the excess cash retained by the Sub Post Master Vedasandur Sub Office and thereby failed to maintain devotion to duty as required of him under Rule 3(1) (ii) of CCS (Conduct) Rules. 1964. They have stated that the applicant could have requested for perusal of the documents relating to the charges leveled against him and during such perusal he might have verified the documents. They have further sated that the applicant had failed to examine the relevant documents pertaining to the charge memo. It is submitted that as per Rule 16 (1-A) of CCS (CCA) Rules if the penalty imposed on the Government servant is likely to affect the amount of pension payable to him, an inquiry shall be held in the manner laid down in sub rule (3) to (23) of Rule 14 of the CCS (CCA) Rules 1965, before making any order imposing punishment of recovery on the Government Servant. The respondents have submitted that since the penalty imposed on the applicant would not affect his pension there is no need hold an inquiry under Rule 16 (1-b) of CCS(CCA) Rules, 1965. It is also stated that the applicant had failed to monitor the updating of RD transactions of Vedasandur SO during the period from 18.01.2008 to 24.01.2008, when he was holding the post of Postmaster Dindigul HO. They have stated that the applicant has failed to observe the procedures prescribed in the Rules 10, 31, 58 and 59 of Post Office Manual Vol. VI Part III while sanctioning additional credit to Vadasandur sub Post Office. They respondents have alleged that the action of the applicant in liberally sanctioning additional credit without verifying the claim of the Sub Post Master Vedasandur SO, enabled the Sub Post Master Vedasandur to continue his fraud to the tune of Rs, 1,23,74,607.00. They have also stated that in view of the above position the awarding the penalty of recovery against the applicant is justifiable and sustainable.
4. We have heard the learned counsel for the applicant and the respondents and perused the records carefully.
5. The learned counsel for the applicant relied on the following judgements/orders in support of his contention that no recovery could be ordered without inquiry or on the basis of vague charges:
(i) Department of Posts Vellore Division, Vellore Vs. Smt. Beula Arulrathinam2/113-D Living Spring Avenue Sangeevipuram Bagayam, Vellore. - 2003 (1) CTC 342 - [W.P. No. 3457 of 1999]
The Honble High Court of Madras had held as under:
â........ Once it is held that there was no wrongful gain to the respondent, or no wrongful loss caused to the Department on account of her negligence, then there will be no question of effecting any recovery.....â
(ii) B.R. Verma Vs. UOI and ors. - O.A. No. 496/2008 (Allahabad Bench decided on 14.09.2011
The relevant portion reads as under:
â....Moreover, recovery of money is a matter of civil consequence is not permissible without firstly conducting an regular inquiry....â
(iii) Anil Gilurker Vs. Bilaspur Raipur Kshetria Gramin Bank And anr. â 2011 (5) CTC 564
The relevant portion reads as follows:
Para 10, .... Law can be summarized that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions of Principles of Natural Justice and the charges should be specific, definite and giving details of the incident which formed the basis of charges and no enquiry can be sustained on vague charges.
(iv) B.L Verma Vs. UOI and ors. â O.A. No. 156/2011 (Jodhpur Bench) decided on 22.05.2012
The relevant para is extracted below:
Para. 19. Therefore, it is held that after having issued to the applicant a charge sheet under Rule 16 of CCS (CCA) Rules, 1965, The penalty of recovery could have been ordered by the respondents only as an exceptional case, for the reasons to be recorded in writing and the delinquent Government servant should have had a reasonable opportunity of being heard regarding the exceptional and compelling circumstances, on the basis of which such recovery was being ordered..........â
6. On the other hand the learned counsel for the respondents relied on the orders of the Honble High Court of Madras passed in W.P. No.35019/2004 dated 21.04.2008, upholding the action of the department taken against respondent No. 1 (applicant in O.A. No. 703/2003-A. Vedi). SLP filed by Shri A. Vedi against the order of the Honble High Court of Madras passed in the above W.P. had been dismissed by the Honble Apex Court. This Tribunal, vide order dated 12.01.2004 directed the respondents in O.A. No. 703/2003 to impose any minor penalty commensurate to the proved lapse against Shri A. Vedi.
7. We have carefully gone through the above judgments/orders. In this case the respondents have issued charge memo against the applicant under Rule 16 of the CCS(CCA) Rules, 1965. The applicant had also asked to conduct an oral inquiry under Rule 16 (1) (A) of the CCS(CCA) Rules, 1965 in the interest of justice. The respondents have rejected the request of the applicant for conducting an inquiry and issued the order of recovery of Rs. 75,000/- @ Rs.2500/- p.m. from May 2012 onwards. We had an occasion to peruse Government of India decision No.22 under Rule 11 of the CCS(CCA) Rules, 1965, deals with âImposition of the penalty of recoveryâ which reads as under:
22 Imposition of the penalty of recovery-
(a) General Conditions:- In he case of proceedings relating to recovery of pecuniary losses caused to the Government by negligence or breach of orders by a Government servant, the penalty of recovery can be imposed only when it is established that the Government servant was responsible for a particular act or acts of negligence or breach of orders or rules and that such negligence or breach caused the loss.
In the case of loss caused to the Government the competent disciplinary authority should correctly assess in a realistic manner the contributory negligence on the part of an officer, and while determining any omission or lapses on the part of an officer, the bearing of such lapses on the loss considered and the extenuating circumstances in which, the duties were performed by the officer shall be given due weight.
..........Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ........Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ...........
..........Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â .........Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ..........Â Â [Rules 106.107 and 111 of P and T Manual Vol. III]
(b) Manner in which charge sheet to be framed:
As is well known the penalty of recovery from pay is a special type of penalty which cannot be awarded in all types of misconduct. Rule 11 (3) of the CCS (CCA) 1965 clearly prescribes thatÂ the penalty of recovery from pay of the whole or part of the loss caused by the government servant to the Government by negligence or breach of orders on his part can be awarded to him. Thus the rule itself makes it clear that the penalty can be awarded only in a case where it has been established that the negligence or breach of orders on the part of a Government servant has led to the loss to the department ..........
................Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ...............Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ................
................Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ..............Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â ...............
...... It should be clearly understood by the disciplinary authorities that while an official can be punished for good and sufficient reasons, the penalty of recovery can be awarded only if the lapses on his part have either led to the commission of the fraud or misappropriation or frustrated the enquiries as a result of which it has not been possible to locate the real culprit. It is, therefore, obligatory that the charge sheet should be quite elaborate and should not only indicate clearly the nature of lapses on the part of the particular official but also indicate the modus operandi of the frauds and their particulars and how it can be alleged that but for the lapses on the part of the officials the fraud or misappropriation could be avoided or that successful enquiries could be made to locate the state at which the particular fraud had been committed by a particular person. This enable the accused not only to submit a defence against the allegation brought against him but also explain how the lapses had not contributed to the loss in any manner. The Disciplinary Authority is also required to give a clear findingÂ in the punishment order on both these points. If it is not done, the order awarding the penalty of recovery will be liable to be set aside. .......
From the perusal of the above procedure it is clear that the penalty of recovery can be imposed only when it is established that the Government servant was responsible for a particular act or acts of negligence or breach of orders or rules and that such negligence caused the loss.
8. In the instant case after receipt of the representation submitted by the applicant against the charge memo, the Disciplinary Authority passed an order dated 06.02.2012. The relevant portion reads as under:
â........... I do not find any reason to concede the request of the CGS to have an oral enquiry under rule 16 (1-A) of CCS(CCA) Rules, 1965 read with Rule 16(1) (b) ibid, since enhanced penalty is proposed to be imposed on the CGS. I am also taking a lenient view, in the view of the fact that he had sanctioned the additional credit after taking over the charge of the office just before the end of the business. Accordingly,
I, N. AZHAGUPANDIAN, Superintendent of Post Offices, Dindigul Division, Dindigul hereby order that a sum of Rs.75,000/- [Rs. Seventy Five thousand only] be recovered from theÂ pay and allowances for the above said Sri. A. Mariappan, Sub Post Master, PandianagarÂ SO at the rate of Rs.2,500/-(Rupees two thousand five hundred only) per month for 30 months from the month of May 2012 to October 2014.
Thereafter, the applicant submitted a detailed appeal 14.03.2012 to the Appellate Authority. The Appellate Authority passed an order dated 28.06.2012, rejecting the appeal and confirmed the order of the Disciplinary Authority.
9. Even though the applicant had requested for an inquiry, he was not given a reasonable opportunity of being heard regarding the exceptional and compelling circumstances on the basis of which recovery was ordered. The respondents have not stated as to how they arrived at the figure of Rs. 75000/- as loss caused to the Government. It is seen that the respondents without determining the quantum of negligence attributable to applicant and the exact amount of quantum of loss attributable to him on account of his negligence, have issued the impugned order or recovery of Rs. 75,000/-.
10.Â With regard to the judgment of the Honble High Court of Madras passed in W.P. No. 35019/2004 dated 21.04.2008, with great respect, we are of the view that Shri A.Vedi (Respondent no. 1) was directly responsible in not verifying the signature in the application for withdrawal with the specimen signature available in the records when the withdrawal sum is more than Rs.500/- and hence the Honble High Court had sustained the orders of the Departmental Authorities. But that is not the case here.
11. Further the orders passed by the Allahabad Bench in B.R. Vermas case supra and of the Jodhpur Bench of this Tribunal in B.L. Vermas case supra squarely applies to the facts of this case. Besides, recovery of money is a matter of civil consequence, which is not permissible without firstly conducting an inquiry.
12. In view of the above discussion, the impugned order dated 28.06.2012, (Annex. A/7) upholding the order of the Disciplinary Authority dated 06.02.2012 (Annex.A/5) is hereby quashed and set aside, IF any amount is recovered from the applicant the same should be refunded to the applicant within a period of two weeks from the date of receipt of a copy of this order. In the result the O.A. is allowed. No order as to costs.