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2018 DIGILAW 309 (GAU)

Union of India v. Tarulata Barman W/o Sri. Digish Chandra Barman

2018-02-20

AJIT SINGH, MANOJIT BHUYAN

body2018
JUDGMENT AND ORDER : MANOJIT BHUYAN, J. This writ petition is presented against the order dated 16.05.2014 passed by the Central Administrative Tribunal, Guwahati Bench in OA No. 29/2013. 2. We have heard Mr. Y. Doloi, learned Senior Central Government Counsel (CGC) for the petitioners as well as Dr. B. Ahmed, learned counsel representing the sole respondent. 3. The respondent who at the relevant time was working as Sub Post Master of Joypur Rajabazar Sub Office under the establishment of Postal Services, Assam Circle was proceeded against under Rule 16 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (in short, “the Rules”) for failing to maintain absolute integrity and devotion to duty as is required under Rule 3(1)(i), 3(1)(ii) and 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964, and also being responsible for monetary loss sustained by the Department. The statement of imputations was initially issued vide Memorandum dated 15.06.2009, to which the respondent had also submitted representation on 20.06.2009 However, the said Memorandum dated 15.06.2009 was cancelled as the incumbency period was shown incorrectly and a second Memorandum dated 19.02.2010 was issued on the same set of imputations of misconduct or misbehaviour. The respondent made detailed representation on 19.04.2010 against the aforesaid second Memorandum dated 19.02.2010 Imputation against the respondent was that while working as Sub Post Master in the aforesaid Sub Office during the period from 11.07.2005 to 24.04.2008 she had concealed the fact of non-credit of Rs. 10,50,000/- (Rupees Ten Lakhs Fifty Thousand) in the Government account by her husband Shri Digish Chandra Barman, the then Sub Post Master of the same Sub Office. It was further alleged that by her act in non-reporting the case, it had emboldened Shri Digish Chandra Barman to commit further fraud at Lakhipur Sub Office to the tune of Rs. 7,50,000/- (Rupees Seven Lakhs Fifty Thousand). 4. On consideration of the statement of imputations communicated vide Memorandum dated 19.02.2010 as well as the representation of the respondent dated 19.04.2010 and other relevant records, the order dated 23.05.2011 was issued under the hand of the Senior Superintendent of Post Offices, Cachar Division, Silchar imposing punishment on the respondent with recovery of Rs. 5,03,000/- (Rupees Five Lakh Three Thousand) from the pay of the respondent in 36 monthly instalment at the rate of Rs. 14,000/- per month. 5,03,000/- (Rupees Five Lakh Three Thousand) from the pay of the respondent in 36 monthly instalment at the rate of Rs. 14,000/- per month. This order was put to test before the Tribunal by the respondent in the aforesaid OA No. 29/2013, which was allowed vide order dated 16.05.2014 primarily on the ground of violation of the principles of natural justice for non-assigning any reason for not holding any enquiry. The Tribunal also held that the Disciplinary Authority failed to consider all the points raised by the respondent in her representation dated 19.04.2010 in a fair and judicious manner. While setting aside the order dated 23.05.2011, the Tribunal directed the Disciplinary Authority to assign reasons for not holding enquiry and thereafter to consider all points raised in the representation dated 19.04.2010 The required exercise was directed to be completed within a period of 3(three) months with further observation that while passing a fresh order, the Disciplinary Authority shall bear in mind that the respondent is not to be held responsible for the alleged fraud done at Lakhipur Sub Office. Aggrieved, the present appeal is laid by the Union of India in the Ministry of Communications and others. 5. At the very outset, we make it clear that having regard to the scope of power of judicial review and the parameters for making interference in disciplinary proceedings, we are not entering into the factual aspect of the case. The determination of the case is focused on the decision-making process to ascertain whether in reaching the conclusion the Disciplinary Authority made any departure from the set procedure as envisaged under the law. The determination cannot be by way of re-appreciation of evidence and/or by looking into the adequacy and sufficiency of the materials which led to imposition of the impugned punishment. 6. As per Rule 16(1) of the aforesaid Rules, a Government servant is required to be informed in writing of the proposal for taking action against him and of the imputations of misconduct or misbehaviour on which such action is proposed to be taken. The Government servant is to be given reasonable opportunity of making representation against the proposal. Rule 16(1) also prescribes that if the Disciplinary Authority is of the opinion that an enquiry is necessary to be held in the manner laid down for imposition of major penalties, it shall hold an enquiry. The Government servant is to be given reasonable opportunity of making representation against the proposal. Rule 16(1) also prescribes that if the Disciplinary Authority is of the opinion that an enquiry is necessary to be held in the manner laid down for imposition of major penalties, it shall hold an enquiry. The Disciplinary Authority is also required to take into consideration the representation, if any, submitted by the Government servant and also the record of enquiry, if any, held. Thereafter, the Disciplinary Authority is required to record a finding on each imputation of misconduct or misbehaviour and to consult the Union Public Service Commission, where such consultation is necessary. 7. From the records produced in original as well as from the documents placed on record by the writ petitioner, it is seen that the respondent was informed in writing of the proposal to take action against her and also the imputations of misconduct or misbehaviour on which action was proposed to be taken. The same was done vide Memorandum dated 19.02.2010 The respondent was given opportunity to submit representation and, in fact, a detailed representation was submitted by her on 19.04.2010 The records so produced does not reveal that the respondent made any request for the holding of an enquiry or any request for inspection of any document. On the basis of the detailed representation submitted by the respondent, the Disciplinary Authority recorded finding on the imputations of misconduct or misbehaviour vide order dated 23.05.2011 The Disciplinary Authority held that for her act of concealing the fact of non-credit of Rs. 10,50,000/- in the Government account involving her husband who was earlier the Sub Post Master of Joypur Rajabazar Sub Office and such act having emboldened her husband to commit further fraud at Lakhipur Sub Office to the tune of Rs. 7,50,000/-, she has failed to maintain absolute integrity and devotion to duty and was also responsible for the loss sustained by the Department. Although the Disciplinary Authority observed that the respondent deserves severe punishment, however, considering her future service, leniency was shown by ordering recovery of Rs. 5,03,000/- from her pay in 36 monthly instalments at the rate of Rs. 14,000/- per month. 8. Although the Disciplinary Authority observed that the respondent deserves severe punishment, however, considering her future service, leniency was shown by ordering recovery of Rs. 5,03,000/- from her pay in 36 monthly instalments at the rate of Rs. 14,000/- per month. 8. The order dated 23.05.2011 imposing order of recovery, in our considered view, is not opposed to any law and/or the provision under Rule 16(1) of the Rules, read with Rule 15(3) thereof which prescribes that if the Disciplinary Authority after considering the representation, if any, submitted by the Government servant and having regard to its findings on all or any of the articles of charge, is of the opinion that any of the minor penalties specified in Rule 11 is to be imposed on the Government servant, it shall, notwithstanding anything contained in Rule 16, make an order imposing such penalty. It is seen that for the purpose of imposing minor penalty and having regard to the language employed in sub-rule (3) of Rule 15, there is no mandatory requirement for holding an enquiry. 9. In the course of hearing it is brought to our notice that the respondent has retired from service on 31.07.2015 on attaining the age of superannuation. It is also brought to notice that the amount of Rs. 5,03,000/- have already been recovered from her pay. Be that as it may, we find no infirmity in the order dated 23.05.2011 whereby the order of recovery was made against the respondent. To reiterate, there is neither any violation of principles of natural justice nor any violation of the procedure prescribed under the Rules while passing the order of recovery dated 23.05.2011. Accordingly, the order of the Tribunal cannot be sustained and the same is set aside. The present writ petition stands accordingly allowed. No cost.