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2005 DIGILAW 143 (CAL)

BRAH MANANDA v. UNION OF INDIA

2005-03-01

BASUDEVA PANIGRAHI, N.D.DAYAL

body2005
V. C. PANIGRAHI, J. ( 1 ) IN this application the applicant, who is working as sorting Assistant in the RMS Division, Calcutta, has challenged the charge-sheet dated 26. 2. 98, the punishment order dated 30. 4. 1998 and the appellate/ revision orders dated 30. 10. 1998 read with order dated 25. 11. 1998 with a further direction to the respondents to refund the amount deducted from his salary. ( 2 ) DURING the relevant time, the applicant was working as Sorting assistant in the scale of Rs. 4,500/-7,000/- under the Sr. Superintendent of calcutta RMS Division at G. P. O. , Calcutta. He wa. s issued a minor penalty charge-sheet dated 26. 2. 1998 under Rule-16 of CCS (CCA) Rules. The charge levelled against the applicant inter alia stated that while the applicant was working as Sorting Asst. , on 4. 1. 1995, 79 insured letters were lost from his custody though he received the postal bag containing those insured letters in sealed condition. The applicant was found to be responsible for the loss and hence he was charged with violating sub rule (4) of Rule-40 of Postal Manual vol.-VII. The applicant submitted a representation denying the charge and stated that the bag was handled at different levels after the same was dispatched from the applicant till it reached the destination, and, therefore, it could not be said for sure that the applicant was responsible for the alleged loss or tampering of the postal bag. However, without holding any detailed enquiry to pin point the responsibility of the applicant and without giving him an opportunity, the disciplinary authority passed the punishment order dated 30. 4. 1998, whereby the pay of the applicant was reduced from the stage of rs. 4,875/- to the stage of Rs. 4,750/- for a period of one year w. e. f. 1. 5. 1998 without cumulative effect. According to the applicant, the said punishment order was served on him on 6. 6. 1998. Thereafter, he preferred an appeal on 19. 8. 1998, which was rejected on the ground of limitation. Subsequently, the appellate authority reviewed the punishment order under Rule 29 of CCS (CCA) Rules and held that the punishment of reduction of pay by one stage from Rs. 6. 1998. Thereafter, he preferred an appeal on 19. 8. 1998, which was rejected on the ground of limitation. Subsequently, the appellate authority reviewed the punishment order under Rule 29 of CCS (CCA) Rules and held that the punishment of reduction of pay by one stage from Rs. 4,875/- to 4,750/- for one year be revised to recovery of a portion of the loss sustained by the Department i. e. recovery of an amount of Rs. 27,708/- from his pay in 36 installments. By a subsequent order dated 25. 11. 1998, it was directed that instead of Rs. 27,708/-, the sum of Rs. 16,480/- shall be recovered from the applicant in 36 installments. Against this order, the applicant made a further review petition on 7. 12. 1998 and finally has filed this application for the reliefs stated above. ( 3 ) THE respondents have filed the reply in which it is stated that the applicant was entrusted with the job as Air Mail Closer on 31. 1. 1995 and he received closed and sealed registered bag the from the concerned Sorting assistant to consign the same inside the mail bag in the presence of the RSA etc. It is further stated that the mail bag which was closed and sealed by the applicant in the presence of the RSA was handed over to the mail agent without any acquitance as required under the rules. It is further submitted that the Registered bag was to be received by the applicant in between 00. 00 hrs. to 00. 30 hrs on the next calendar day, but was included in the mail bag at about 2. 30 a. m, which means that he detained the said bag in his custody for about 2 hrs. The destination station of the concerned bag reported that the mail bag was in open condition and 79 insured letters were missing therefrom. Therefore, the applicant was found to be responsible for the loss. It is further stated that in his representation to the charge memo the applicant did not ask for holding of an enquiry and, therefore, on consideration of his representation, punishment order was issued by the competent authority. It is further stated that although the punishment order was issued on 30. 4. 1998, it could not be served on the applicant before 6. 6. 1998 as he was on leave from 1. 5. 1998 to 1. It is further stated that although the punishment order was issued on 30. 4. 1998, it could not be served on the applicant before 6. 6. 1998 as he was on leave from 1. 5. 1998 to 1. 6. 1998. It is further stated that the applicant though filed an appeal but it was beyond the prescribed period of limitation and, therefore, it was not entertained. But the appellate authority in exercise of his power of review under Rule-29, reviewed the punishment order and imposed the punishment of recovery. Thus, they have urged that no illegality was done as the applicant was found responsible for the pecuniary loss caused to the Government and, therefore, the same was ordered to be recovered from him which is a minor punishment. ( 4 ) WE have heard learned Counsel for the parties. Mr. Mukherjee, learned Counsel appearing for the applicant has assailed the impugned order on various grounds. His first contention is that no enquiry was conducted before imposition of the punishment by the Disciplinary Authority nor the responsibility of the applicant was fixed for the alleged loss of mail articles. He submits that the applicant in his representation to the Charge-memo had indicated that he delivered the mail bag in closed and sealed condition to the agent but it was found to be tampered at the destination station. In the meanwhile, the mail bag was handled at various places and, therefore, the responsibility of the applicant cannot be fixed for the alleged temperament or loss of postal articles. We, however, find that a minor penalty charge sheet was issued and a minor penalty can be imposed even without holding any detailed enquiry. The next contention of Mr. Mukherjee is that the penalty was given effect w. e. f. 1. 5. 1998, whereas the punishment order was served upon the applicant in the first week of June and thus the penalty order was given retrospective effect, which is not permissible. It is not in dispute that the penalty order was served upon the applicant on 6th June, 1998 and at the relevant point of time he was on leave. However, here the penalty is of withholding of increments for one year w. e. f. 1. 5. It is not in dispute that the penalty order was served upon the applicant on 6th June, 1998 and at the relevant point of time he was on leave. However, here the penalty is of withholding of increments for one year w. e. f. 1. 5. 1998, therefore, the monetary effect started against the applicant from 1st June when he was on leave and when admittedly the punishment order was not served upon him. To that extent the punishment order was defective as according to the Rule-17 of CCS (CCA) Rules, an order has to be communicated to the delinquent. However, since this order was subsequently modified by the Appellate Authority, there is no further necessity to dwell on this point. ( 5 ) THE further contention of the Learned Counsel for the applicant is that the applicant after joining the service returning from leave when served with the punishment order, he made an appeal but the Appellate Authority rejected his appeal on the ground of limitation. Strangely, the same Appellate authority allegedly in exercise of power of revision under Rule-29 of CCS (CCA)rules, suo motu revised the punishment order and issued another penalty of recovery of part of alleged government loss to the tune of Rs. 27,708/- when the total loss was said to be Rs. 69,270/- vide order dated 30. 10. 1998. Further the said order was once again revised by an order dated 15. 11. 1998, wherein the recovery amount was assessed as Rs. 16,480/- and the total loss was assessed as Rs. 41,200/ -. His contention is that in the Charge memo there was no mention of the total pecuniary loss to the Government and the Appellate Authority therefore cannot pass an order of recovery against the applicant without first disclosing the loss in the charge sheet. Furthermore the total loss suffered by the Government was not properly assessed as the amount varied on two different occasions. He contends that unless the amount of loss is first ascertained and assessed and the involvement of the applicant is proved, no recovery can be made from him in terms of rules. ( 6 ) MR. Furthermore the total loss suffered by the Government was not properly assessed as the amount varied on two different occasions. He contends that unless the amount of loss is first ascertained and assessed and the involvement of the applicant is proved, no recovery can be made from him in terms of rules. ( 6 ) MR. Mukherjee has further questioned the legality, propriety and validity of the revision order by which the Appellate Authority, who initially rejected the appeal of the applicant on the ground of limitation sue motu passed another order under Rule-29 without giving any opportunity to the applicant. ( 7 ) LEARNED Counsel for the respondents has however pointed out that under Rule 29 (1) (v), the Appellate Authority within six months from the date of order can revise the order and, therefore, there was no illegality committed by the Appellate Authority in revising the order under Rule-29 as the impugned revision was made within six months period. ( 8 ) WITHOUT going into the rival contentions, we find that this issue can be resolved on the basis of a recent circular issued by the Department of Posts dated 29. 5. 2001, which is appearing as GOI, instruction No. 10 below Rule-29 of Swamy's Compilation of CCS (CCA) Rules-27th Edn. at page 115. The same is reproduced below :- (10) Revising Authority in Department of Posts.-No. S. O. 1279, dated 9. 6. 2001 -In exercise of powers conferred by Clause (VI) of sub-rule (I) of Rule 29 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, the President hereby specifies that in the case of a Government servant serving in the Department of Posts for whom the Appellate Authority is subordinate to the authority designated as the Principal Chief Postmaster-General or the Chief Postmaster-general (other than the Chief Postmaster-General of senior administrative Grade) of a Circle, the said Principle Chief Postmaster-general or the said Chief Postmaster-General, as the case may be. shall be the revising authority for the purpose of exercising the powers under the said Rule 29. [g. O. , Dept. of Posts, Notification No. C-11011/1/2001-VP dated 29th May, 2001] ( 9 ) FROM the above it is quiet clear that under Rule-29, only the chief Post Master General or Principle Chief Post Master General is the competent authority to revise the order in case the appellate authority is below him. [g. O. , Dept. of Posts, Notification No. C-11011/1/2001-VP dated 29th May, 2001] ( 9 ) FROM the above it is quiet clear that under Rule-29, only the chief Post Master General or Principle Chief Post Master General is the competent authority to revise the order in case the appellate authority is below him. In the instant case, the Sr. Superintendent of Post Offices has acted as an appellate authority and he himself also acted as the revising authority, which is not permissible under the Rules or instruction issued by the Department of Posts. Although this instruction was issued in May, 2001 and the impugned order was passed in 1998, but the principle underlying in the issuance of above circular should also be applicable in the instant case. Even though under sub-rule (v) the appellate authority is empowered to revise the order within six months, but the power of the appellate authority under rule 27 and that under rule 29 is not the same. What the appellate authority could not do under rule 27, cannot do under rule 29, specially when there is nothing on record that he sought for the record indicating his intention to revise the order nor the applicant was given an opportunity. No doubt monetarily, the revised punishment was more harsh and thus the subsequent punishment was an enhancement of the earlier punishment though both the punishments may be minor penalties. Moreover, there was no indication that at an earlier stage any assessment was made about the quantum of Government loss and therefore recovery under Rule 11 (Hi) without first proving the negligence or breach of orders by the applicant in a regular enquiry cannot be sustained. ( 10 ) IN view of the above, we quash the impugned order and direct the respondents to refund the amount if deducted from the applicant within two months from the date of communication of this order. It is however, open to the respondents to initiate a regular enquiry to fix up the responsibility for the alleged loss of postal articles according to law. ( 11 ) WITH the above observation, the application is disposed of. No costs.