Union of India and Others v. M.S. Rajamohan Nair and Union Public Service Commission

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **MONDAY, THE 21ST DAY OF MARCH 2016/1ST CHAITHRA, 1938** ## **OP (CAT).No. 791 of 2013 (Z)** **----------------------------OA.NO. 355/2012 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH ------------------------** ## **PETITIONER(S)/RESPONDENTS:** **-----------------------------------------------** **1. UNION OF INDIA, REP. BY SECRETARY TO THE GOVERNMENT OF INDIA,** **MINISTRY OF COMMUNICATIONS, DEPARTMENT OF POSTS, NEW DELHI.** **2. POSTMASTER GENERAL, CENTRAL REGION, DEPARTMENT OF POSTS,** **BENERJEE ROAD, COCHIN-682 018.** **3. THE SENIOR SUPERINTENDENT OF POST OFFICES, KOTTAYAM POSTAL DIVISION, KOTTAYAM.** ## **BY ADV. SRI.S.KRISHNAMOORTHY, CGC** ## **RESPONDENT(S)/APPLICANT:** **--------------------------------------------** **1. M.S. RAJAMOHANAN NAIR, AGED 62 YEARS, S/O.P.R.SIVASANKARA PILLAI, (RETIRED POSTAL ASSISTANT KOTTAYAM HEAD OFFICE), RESIDING AT MOOLAYIL HOUSE, PEROOR.P.O., KOTTAYAM- 686 637.** **2. THE UNION PUBLIC SERVICE COMMISSION, NEW DELHI, THROUGH ITS SECRETARY, SHAJAHAN ROAD, NEW DELHI-110 011** **R1 BY ADV. SRI.BINDU SREEKUMAR** **R2 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 21-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **OP(CAT).NO.791/2013** **APPENDIX** ## **PETITIONER(S) EXHIBITS** - **P1TRUE COPY OF THE O.A.NO.355/2012 FILED BY THE RESPONDENT.** - **P2TRUE COPY OF THE REPLY STATEMENT IN O.A.NO.355/2012 FILED BY THE PETITIONER.** - **P3TRUE COPY OF THE ORDER IN O.A.355/12 DATED 12.12.2012 OF THE HON'BLE TRIBUNAL.** ## **RESPONDENTS' EXHIBITS:** **R1(A)- TRUE COPY OF THE NO.C1020 DATED 20/01/2016 ISSUED BY THE 3RD RESPONDENT.** **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## K. SURENDRA MOHAN & P.V.ASHA, JJ. ======================== O.P.(CAT) No.791 of 2013 ================= Dated this the 21[st] day of March, 2016 ## JUDGMENT ## Surendra Mohan, J. The Union of India and the other respondents in O.A.No.355/2012 of the Central Administrative Tribunal, Ernakulam (CAT for short) are before us challenging Ext.P3 order dated 12.12.2012. As per the impugned order, the CAT has interfered with the order that was under challenge and has reduced the quantum of punishment that was imposed on the 1[st] respondent herein. ## 2. The short facts of the case are as follows: The 1[st] respondent is a person who had joined service as a Postman on 01.04.1972 and retired on 31.07.2010 as a Postal Assistant. He was charge sheeted on 23.07.2010, a week before his retirement under Rule 14 of the CCS(CCA) Rules, 1965. The allegation against him was that while working as R.D.Counter Assistant, Kottayam H.O. he had failed to verify the specimen O.P.(CAT)No.791 of 2013 2 signature of a depositor resulting in a fraudulent payment of Rs.4500/- to one Smt.M.K.Leelamony, (MPKBY) on 11.11.2005. It was alleged that, it was duty of the 1[st] respondent to have verified the signature on the withdrawal form with the specimen signature that was available before countersigning the same. However, his conduct resulted in the fraudulent withdrawal of an amount of Rs.4500/- by Smt.M.K.Leelamony. The Enquiry Officer as per his report dated 07.09.2010 held that the charge was proved. At the enquiry the 1[st] respondent admitted that he had not verified the signature, as stipulated. Smt.M.K.Leelamony admitted to have fraudulently withdrawn the amount and also repaid the amount. 3. Since the 1[st] respondent had retired on 31.07.2010, as Postal Assistant from Kottayam, H.O the enquiry that was commenced under Rule 14 got converted into an enquiry under Rule 9 of the CCS(Pension) Rules, 1972. The proceedings continued. Meanwhile, the 1[st] respondent was not being paid his pension and other retirement benefits. He approached the CAT by filing OA No.129/2011. The said O.A.was disposed of on 18.03.2011 with a direction to complete the proceedings within three months. Thereupon, the disciplinary authorities dropped the charges against the 1[st] respondent on 15.06.2011. The O.P.(CAT)No.791 of 2013 3 Director of Accounts (Postal) objected to the dropping of the proceedings against the 1[st] respondent stating that, disciplinary authority had no power to drop the charges under Rule 9. 4. While so, the 1[st] respondent approached the CAT again by filing O.A.No.978/2011 seeking disbursement of his retirement benefits. The said O.A.was disposed of on 03.02.2012 directing the petitioners to release 50% of the gratuity amount due to the 1[st] respondent on or before 15.03.2012 and the balance amount was withheld subject to the final orders to be passed by the President. Pursuant to the order of the CAT, it is admitted that 50% of the gratuity amount was paid to the 1[st] respondent on 14.03.2012. Immediately thereafter, the Presidential order dated 16.03.2012 was issued, a copy of which is Annexure-A7. As per Annexure-A7 25% of the pension of the 1[st] respondent has been directed to be withheld for a period of three years and his entire gratuity has been forfeited. It was challenging Annexure-A7 that the 1[st] respondent had approached the CAT by filing O.A.No.355/2012. He sought for quashing Annexure-A7 order and also claimed interest for the delay in disbursement of the retirement benefits payable to him. According to him, Annexure-A7 was arbitrary, discriminatory and O.P.(CAT)No.791 of 2013 4 violative of Articles 14 & 16 of the Constitution of India. Annexure-A7 according to the 1[st] respondent, does not contain any finding of grave mistake or negligence on his part. 5. The contentions of the 1[st] respondent were refuted by the petitioners. They filed a reply statement. It was contended that they were in a situation where it was not possible to implement the Presidential order Annexure-A7 for the reason that as per the order in O.A.No.978/2011 50% of the gratuity amount had already been released on 14.03.2012. In view of the order of the CAT in O.A.No.978/2011 it was further contended that the 1[st] respondent was bound by the final order. 6. The CAT considered the contentions of the respective parties. The CAT noticed that as per another order passed on the very same day, ie. on 16.03.2012 against another employee who was functioning as the Assistant Post Master, (R.D) Kottyam H.O. on the basis of similar charges as in the present case, the punishment imposed was only withholding of 10% of the monthly pension for a period of one year whereas, the entire gratuity was paid to her. The CAT therefore found that this was a case in which an employee placed in similar circumstances was treated differently in the matter imposing punishment for a similar O.P.(CAT)No.791 of 2013 5 offence. Therefore, the quantum of punishment in Annexure-A7 order was interfered with and reduced to withholding of 10% of the pension for a period of one year. The order forfeiting gratuity of the 1[st] respondent has been set aside. The petitioners challenge the order of the CAT. 7. According to Sri.S.Krishnamoorthy, Central Government Counsel, the CAT committed a grave error in interfering with Annexure-A7 order of the President. It is pointed out that the impugned order passed under Rule 9 of the CCS (Pension) Rules, is not amenable to challenge before the CAT at any rate. The CAT cannot sit in judgment over the quantum of punishment that has been fixed in exercise of discretion. It is contended that, it is not the quantum of the amount involved that is decisive, but the gravity of the conduct that was alleged. Here, the 1[st] respondent, who was expected to discharge his duties carefully and with integrity was guilty of gross negligence in the discharge of his duties. His negligence paved the way for the agent to fraudulently put the signature of the depositor and withdraw money from his account. For the above reason, it is submitted that his service under the Government should not be considered to have been satisfactory. Gratuity is a service benefit paid to an employee for O.P.(CAT)No.791 of 2013 6 rendering satisfactory service. The 1[st] respondent was not entitled to claim the same. It is also contended that as per Annexure-A6 order in O.A.No.978/2011 while directing payment of 50% of the gratuity amount to the 1[st] respondent the CAT had made the balance amount of Gratuity subject to the final order to be passed by the President. The final order is Annexure-A7, which is therefore binding on the 1[st] respondent. It is contended that it was not open for him to challenge the same. The CAT had omitted to take note of the above fact. 8. Advocate Bindu Sreekumar who appears for the 1[st] respondent on the other hand points out that the allegation against the 1[st] respondent relates to an incident of the year 2005. During the long career that the 1[st] respondent had in the Postal Department, he had not been subjected to any disciplinary proceedings. In the present case, the memo of charges was issued to him on 23.07.2010 a week before his retirement. He had approached the CAT thrice, first for expediting the statutory proceedings against him, secondly for the disbursement of his retirement benefits and thereafter challenging Annexure-A7 from which the present Original Petition arises. According to the learned counsel, the case of the 1[st] respondent is squarely O.P.(CAT)No.791 of 2013 7 covered by the dictum of the Supreme Court in D.V.Kapoor v. Union of India and others (AIR 1990 SC 1923). It is also pointed out that there is no justification, for the differential treatment that has been meted out to the 1[st] respondent herein while at the same time taking a lenient attitude in the case of Smt.K.M.Cicily, an Assistant Postmaster against whom an order was passed on 16.03.2012 itself. According to the counsel, the CAT has rightly interfered with the matter in view of the discrimination against the 1[st] respondent. 9. Advocate Sri.S.Krishnamoorthy responds to the above contentions by placing reliance on another decision of the Apex Court in Union of India and Others v. B.Dev [(1998) 7 SCC 691]. In the said case, a different view of the matter has been taken by the Apex Court, is contended. Therefore it is contended that Ext.P3 order requires to be interfered with and set aside by this Court. ## 10. Heard. 11. The facts of this case are not in dispute. The 1[st] respondent, who had joined service as a Postman, has admittedly retired on 31.07.2010 as a Postal Assistant. On 23.07.2010, a week before his retirement a memo of charges was served on O.P.(CAT)No.791 of 2013 8 him, alleging dereliction of duty in the matter of verifying the signature of the depositor with the specimen signature available in the records of the Department before countersigning a withdrawal form. The dereliction of duty is alleged to have facilitated the withdrawal of an amount of Rs.4500/- by the agent, who had in fact forged the signature of the depositor on the withdrawal form. An enquiry was conducted on the basis of the memo of charges and the Enquiry Officer found that, the 1[st] respondent had admitted to the fact that he had not verified the signature of the depositor. The Enquiry Officer found that, the agent had admitted to the fraudulent withdrawal of the amount and had repaid the entire amount. Though the enquiry was commenced under Rule 14 of the CCS(CCA)Rules 1965, since the 1[st] respondent had retired in the meantime the proceedings continued under Rule 9 of the CCS (Pension) Rules, 1972. Since the proceedings were dragging on, the 1[st] respondent had approached the CAT by filing O.A.No.129/2011, seeking completion of the proceedings expeditiously. In the said O.A, an order directing the proceedings to be completed in three months was issued. Thereafter, the 1[st] respondent filed O.A.No.978/2011 seeking disbursement of his retirement O.P.(CAT)No.791 of 2013 9 benefits. As per Annexure-A6 order dated 3.2.2012, 50% of the gratuity amount was directed to be paid on or before 15.03.2012. Accordingly, 50% of the gratuity amount was paid to the 1[st] respondent on 14.03.2012. It was thereafter on 16.03.2012 that Annexure-A7 order was issued. 12. It is also not disputed before us that on the very same date- 16.03.2012 another Presidential order was issued, relating to the misconduct alleged against one Smt.K.M.Cicily who was functioning as Assistant Postmaster (RD) Kottayam HO. The allegation against her was that, she had authorised payment of withdrawal (final closure) of Rs.6383/- on 15.05.2008 from Kottayam HO RD Account No.10090188 which was in the name of one Sri.Manuel Mani, without verifying the signature of the depositor as per the rules and procedures prescribed. Another instance of withdrawal of an amount of Rs.5000/- as well as a further amount of Rs.10593/- relating to two other accounts were also levelled against her. All the charges were admitted by the charged officer. As per the Presidential order in the case of Smt.K.M.Cicily, the direction was to withhold 10% of her monthly pension for a period of one year. Her gratuity was permitted to be released. O.P.(CAT)No.791 of 2013 10 13. In comparison, the 1[st] respondent is a lower grade employee, against whom the allegation is only in respect of an amount of Rs.4500/-. In the present case, the agent had repaid the entire amount. While in the case of Smt.K.M.Cicily, she had paid a total amount of Rs.27600/- against the loss and penal interest. 14. However, in the case of the 1[st] respondent, his entire gratuity was directed to be forfeited and 25% of his monthly pension was directed to be withheld for a period of three years. The CAT has found that the 1[st] respondent was discriminated in the matter imposing the punishment. Therefore the CAT has interfered with the quantum of punishment and has reduced and fixed the same at the quantum that has been stipulated in the Presidential order of the date, in the case of Smt.Cicily referred to above. 15. According to the learned counsel for the petitioners, the order of the CAT requires interference under Article 227 of the Constitution of India. We notice that, the 1[st] respondent in this case had retired on 31.07.2010. About six years have lapsed since his retirement. The allegation against him related to facilitating the withdrawal of an amount of Rs.4500/-. The O.P.(CAT)No.791 of 2013 11 amount was repaid by the agent who had actually committed the fraud. There is no allegation of misappropriation against him. The allegation against him is confined to non verification of the signature on the withdrawal form with those available in the records of the Department. It is true that the conduct cannot be dismissed as insignificant or trivial. However, this is a case in which an employee who was working in the Department for more than 3 decades, has retired from service and is in the evening of his life. The retirement benefits are intended for his sustenance. Though Rule 9 of the CCS (Pension) Rules confers a discretion on the President to withhold gratuity in appropriate cases, it has to be done with utmost circumspection, considering the fact that the employee has retired. The fact that, another employee who was proceeded against on similar allegations was imposed with only a lesser punishment though the amount involved was much more cannot be dismissed as an irrelevant or an extraneous aspect that the CAT ought not to have taken into account. In the present case the CAT was concerned, by the fact that, for identical offences two employees who were proceeded against were imposed with punishments that were disproportionate to each other. Therefore the CAT has interfered with the matter and O.P.(CAT)No.791 of 2013 12 scaled down the punishment imposed by Annexure-A7 order to bring the same on par with the one imposed on Smt.K.M.Cicily. We are not prepared to accept the contention that, the said exercise amounts to exercise of a jurisdiction that is not vested in the CAT by law. We remind us of the words of the Apex Court in D.V.Kapoor v. Union of India and others (supra) which reads as follows: “7. Rule 9 of the rules empowers the President only to withhold or withdraw pension permanently or for a specified period in whole or in part or to order recovery of pecuniary loss caused to the State in whole or in part subject to minimum. The employee's right to pension is a statutory right. The measure of deprivation therefore, must be correlative to or commensurate with the gravity of the grave misconduct or irregularity as it offends the right to assistance at the evening of his life as assured under Art.41 of the Constitution.” 16. It has been contended before us that, in Union of India And Others v. B.Dev (supra) a different view has been taken by the Apex Court. However, we do not find that any different principle has been laid down in the said case. In the said case, an employee who had been absenting himself from duty, and refusing to join duty, was proceeded against. The Apex Court O.P.(CAT)No.791 of 2013 13 has noticed that he had purchased a house at London at the beginning of his tenure, indicating thereby that he had no intention at any time of joining duty at New Delhi. It was found that the Enquiry Officer had in the said circumstances, entered a finding that the employee was guilty of grave misconduct. It has been noted by the Court that, the view adopted therein was by reason of the difference in facts in both the cases. 17. In the present case, on a comparison of the recommendations made by the UPSC in the case of Smt.K.M.Cicily and in the case of 1[st] respondent, what becomes glaring is the dissimilar punishments that were proposed. It does not stand to reason why the UPSC has in the case of a Charged Officer who was alleged to have facilitated the withdrawal of amounts in repeated instances, recommend a lesser punishment while a greater punishment was proposed in the case of 1[st] respondent who is alleged to have omitted to verify the signature in one instance only. The punishments were no doubt discriminatory and therefore the interference with the impugned order by the CAT was justified. 18. In the present case, as already noticed, the employee has already retired and is leading a retired life. He has not been O.P.(CAT)No.791 of 2013 14 exonerated by the CAT. What has been done is only to reduce his punishment to the level of the punishment imposed on another employee in similar circumstances. Therefore, we do not find any grounds to interfere with the order of the CAT. For the above reasons, the above OP(CAT) is dismissed. Sd/- K. SURENDRA MOHAN, JUDGE Sd/- P.V.ASHA, JUDGE MJL