Wednesday, November 7, 2012

*** OA No.384 OF 2008 -- my dissent --incomplete on - ?????



Hon'ble Smt. Leena Mehendale, Member (A) :

            I had the benefit of going through the judgment of my learned Brother. I agree in principle with the observations made upto para 15, with due resect, I disagree with his conclusion for the following reasons.  As the facts of the case has adequately been dealt with by my learned Brother, I confine myself to the limited paras only.  Accordingly, I give my views as under.

2.         My brother has dealt with the first 3 grounds raised by the learned counsel for the applicant and I am in agreement with him.

3.         The 4th ground raised by the learned counsel for the applicant is that the Disciplinary Authority has imposed both major and minor punishments for the same charge which is illegal as held by the Hon'ble Supreme Court in Union of India & Ors. Vs. S.C. Parashar – 2006 (3) SCC 167.  The learned counsel would, for the purpose of his arguments, label the recovery of Rs.50,400/- from the salary of the applicant under Rule 11 (3) of CCS (CCA) Rules, 1965, as minor penalty in addition to the major penalty imposed by the Disciplinary Authority, viz., reductiion of pay by two stages for a period of 7 years without cumulative effect.  Hence, it is necessary to examine the actual order passed by the Disciplinary Authority (DA) and also the purport of the cited judgment.  However, the DA has not used the words minor penalty, nor does he mean to do so.

4.         The Disciplinary Authority has passed the order of punishment vide his order No.F-4/2-9/ASK/94-95, dated 31.03.2003 (Annexure-A/5).  The Article of charge reads:-
            "That the said Sri A.S. Koodalgi while working as P.A. Shahabad H.O., during the period from 10.6.91 to 21.4.94 has obtained a SB-3 (application for opening of an account) bearing the signatures of other than the real depositors Sri Gurushanthappa and Sri Malleshappa which was inserted in place of revised SB-3 obtained at the time of conversion of Shahabad HO SB a/c No.379583 into 'joint B' on 17.9.92 which facilitated the fraudulent withdrawal of Rs.100/- on 6.4.93 and Rs.78600/- on 10.4.93 in the said SB account No.379583."

5.         Thus, the charge is of fraudulant withdrawal of money kept with the Postal Department by unsuspecting clients and of failure to maintain absolute integrity.  The Disciplinary Authority has discussed the findings of the Inquiry Officer and his own views in detail and observed that the embezelled amount, when compounded with interest and penal interest came to Rs.1,51,571/-, out  of which, a sum of Rs.50,400/- alone has been ordered to be recovered from the applicant and the remaining amount has been recoveed from other connected officers.  Hence, he has passed the following orders:
            "I, G.S. Ghooli, Sr. Superintendent of Post Office Gulbarga Division, Gulbarga do hereby order that the pay of Sri A.S.K. Koodalgi P.A. Aland be reduced by 2 stages from Rs.4400/- to Rs.4200/- in the time scale of pay of Rs.4000-100-6000 with effect from 01.04.2003 for a period of 7 years without cumulative effect.  During the currency of punishment of reduction the official is not entitled to earn increments of pay and after expiry of the period will not have the effect of postponing the increment.  Further order that an amount of Rs.50,400/- is recovered from his pay in 36 equal instalments starting with effect from April 2003."

6.            It is seen from the above wording that DA has ordered only one punishment, viz., reduction of salary by 2 stages for a period of 7 years without cumulative effect.  It is specifically noted that he has not labelled the recovery of Rs.50,400/- as a punishment as the learned counsel for the applicant would like to label.  It is well known in the administrative parlance that recovery of government money is merely the recovery in favour of the rightful owner from a wrongful possessor and a simple recovery of government money does not preclude the government from proceeding against a delinquent official by way of departmental inquiry.  This is what has been done here and it is not correct to label the recovery as a punishment.  This event is similar to a thief stealing someone's property.  If such a thief is convicted and undergoes imprisonment, the fact of his imprisonment does not entitle him to retain the stolen property.  In the instant case, the money is belonging to the clients of the Postal Department, who come from a category called "a common man".  This client's property was embezelled and fraudulantly withdrawn and must be restored to the rightful owner and the only way to do so is to recover it from the person who fraudulantly withdrew it.

7.         It is also pertinent to note that a Disciplinary Authority is not a judicial official trained in exact legal terminology.  While acting as a Disciplinary Authority, he may not have used the exact legal terminology. Even in respect of procedure, he may have made minor deviations as compared to the strictest technicalities followed by the judicial authorities.  It is his bounden duty to be judicious, unbiased and transparent which we find, he has been. When he passes an order, such an order must be a well reasoned order. Perhaps, it may be said that the Disciplinary Authority could have merely mentioned that a separate order regarding recovery will be passed and could have passed separate order.  However, even that would have the propensity of being challenged as a second punishment.  Therefore, when it is the bounden duty of the Disciplinary Authority to also recover the government money, we feel that by all standards of judiciousness and transparency and reasoning, he has done it rightly to mention about the recovery in the same order in which he has mentioned about the punishment for the charge of failure to maintain absolute integrity.  The government money has to be recovered in all instances, but, particularly so, when it is taken away by fraud.  Failure to appreciate this would result in all types of scams.

8.         Now coming to the judgment of the Hon'ble Supreme Court in S.C. Parashar case supra.  The details of the case are as below:
      The respondent employee was a Deputy Commander of the CRPF.  He allegedly drove the Maruti Gypsy vehicle which was given to him for performing official duties, unauthorisedly and at a very high speed beyond his jurisdiction and met with a serious accident when the said vehicle collided with a stationary truck.  In a inquiry conducted in pursuance of a charge sheet issued for major penalty, his misconduct was proved.  While observing
it is trite that even in a case where the procedure is followed in the departmental proceedings for imposition of a major penalty, having regard to the facts and circumstances of a case, minor penalty can also be imposed.” 
The Hon'ble Apex Court further held  as follows:
“12.     The penalty imposed upon the respondent is an amalgam of minor penalty and major penalty.  The respondent has been inflicted with three penalties: (1) reduction to the minimum of the timescale of pay for a period of three years with cumulative effect; (2) loss of seniority; and (3) recovery of 25% of the loss incurred by the Government to the tune of Rs.74,341.89p. i.e., Rs.18,585.47p., on account of damage to the Gypsy in 18 (eighteen) equal monthly instalments.  Whereas reduction of timescale of pay with cumulative effect is a major penalty within the meaning of clause (v) of Rule 11 of the CCS Rules, loss of seniority and recovery of amount would come within the purview of minor penalty, as envisaged by clauses (iii) and (iii)(a) thereof.  The disciplinary authority, therefore, in our opinion acted illegally and without jurisdiction in imposing both minor and major penalties by the same order.  Such a course of action could not have been taken in law.


      We, therefore, in modification of the order of the High Court hold that the punishment which could have been imposed upon the respondent herein was reduction of pay for a period of three years with cumulative effect and, thus, if his case is considered for promotion after the said period, no further direction is required to be issued.  We set aside the directions of the High Court to the effect:

      “The petitioner shall be entitled to the seniority on the basis of DPC which was held on 7-4-1997 when his immediate junior was promoted to the rank of Second-In-Command.  The petitioner shall also be entitled to all consequential benefits which stood denied due to punishment of loss of seniority”, and direct that the punishment shall be reduction  of pay to the minimum of the timescale of  pay for a period of three years with cumulative effect.”

9.         A reading of the above decision reveals that in addition to the major penalty of reduction to the minimum of the time scale of pay, another penalty viz., loss of seniority was also imposed and this goes against the principle of Rule 11 of CCS (CCA) Rules, 1965.  Therefore, it appears that the punishment was liable to be quashed.  It is seen that the Hon'ble Apex Court has also listed recovery of 25% of the loss incurred by Government on account of damage to the Gypsy vehicle under the lable of additional minor penalty.  It is noteworthy, however, that while modifying the order of the High Court, the Hon'ble Apex Court, in its operative portion of the judgment at para 16, has not commented upon the recovery.  They have quashed the additional minor punishment concerning the loss of seniority, but, have not directed to stay recovery.

10.       The judgment of Hon'ble Punjab & Haryana High Court in R.S. Panwar Vs. Food Corporation of India & Ors. In SA No.400/2008 and 1898/2009 decided on 8.3.2010, is also based on the judgment in the S.C. Parashar case supra.  Hence, I do not find it necessary to deal with it separately.

11.       In view of the above, and since myself and my learned brother do not find merit in the first 3 grounds argued by the applicant, I am of the opinion that there is no merit in the OA and the applicant must pay back the money taken by him by fraud in addition to undergoing the punishment as imposed by the Disciplinary Authority.

12.       Hence, the OA is dismissed without costs.

                                                                                                (LEENA MEHENDALE)
                                                                                                       MEMBER (A)


No comments:

Post a Comment