D.HARIPARANTHAMAN, J.
The writ petitioners are Postal Department. The first respondent herein was employed as a Sub Post Master in Jafferkhanpet Post Office during August 2002 to November 2003. One Smt.N.Sundaribai was a GDS MP, in the same post office. One Shri.P.Arumugam was appointed by the said Smt.N.Sundaribai in her place during her leave period. The said P.Arumugam issued fictitious money orders by misusing the oblong stamp of the post office that was in the custody of first respondent during August 2002 to November 2003 and thereby caused heavy loss to the Department.
2.A charge sheet dated 31.08.2004 was issued against the first respondent. The crux of the charge was that he was guilty of serious negligence and dereliction of duty as he had given full freedom to have accessibility to the oblong money order stamp to the outsider P.Arumugam and that he entrusted the work of preparing the Register list and High Value Money Order list to the outsider, resulting in the said P.Arumugam issuing fictitious money orders causing loss to the Department.
3.The first charge was that the said P.Arumugam issued 10 bogus money orders resulting in the loss of Rs.48,600/- to the Department. In the second charge, it was alleged that the said Arumugam issued 27 bogus money orders causing loss to the tune of Rs.1,32,575/.
4.An enquiry was conducted and the Enquiry Officer in his report dated 03.05.2006 held that both the charges were proved.
5.Based on the findings of the Enquiry Officer, the second respondent imposed the punishment of compulsory retirement by an order dated 28.06.2006. The appeal preferred to the first petitioner was dismissed by an order dated 18.10.2007.
6.The first respondent filed Original Application in O.A.No.844 of 2007 before the Central Administrative Tribunal (shortly the Tribunal), the second respondent herein, to quash the aforesaid orders and sought consequential direction to reinstate him in service with all benefits.
7.The Tribunal passed an order dated 17.07.2008 in O.A.No.844 of 2007, setting aside the order of compulsory retirement imposed on the first respondent and directed reinstatement of the first respondent in service.
8.The Tribunal deprived the back wages during the period from the date of his compulsory retirement till the date of his retirement and directed to count the said period for all retiral benefits, since in the order of the Tribunal, it is held as follows:
"However, this order should not be interpreted as one totally exonerating the applicant from the charges".
9.The Department has now filed the present writ petition to quash the order of the Tribunal dated 17.07.2008 passed in O.A.No.844 of 2007.
10.The Tribunal interfered with the order of the compulsory retirement mainly on the following three reasons:-
(i) The statements made by the first respondent during preliminary enquiry were relied on by the Enquiry Officer to record his findings, without the same being read out to him and got admitted by him.
(ii) The said P.Arumugam, who was the culprit responsible for issuance of bogus money orders was not examined as witness in the enquiry.
(iii) While Shri. Ganesan and Shri. Lakshmanan worked as Sub Post Masters at the same post office in different periods, the said Arumugam issued bogus money orders during their period also. But only recovery was ordered in their case and no punishment was imposed on them.
11.Heard both sides. Both made the same submissions which were advanced before the Tribunal. Reliance placed by the Enquiry Officer/Disciplinary Authority on the statements made by the first respondent during preliminary enquiry could not be faulted. When we perused the original files, we found that those statements were marked in the enquiry and moreover, the first respondent did not dispute the use of oblong stamp by the said P.Arumugam and the preparation of High Value Money Order list and Register list by the said P.Arumugam. Hence, no prejudice is caused to the first respondent and it was not the case of the first respondent that those statements were obtained by force. Those statement were his own statements.
12.Even the learned counsel for the first respondent does not dispute the fact of statements being given by the first respondent during the preliminary enquiry. In fact, the charge sheet also has referred to those statements in the following words:
"In the statement dated 28.1.04 and 29.1.04 of Sri.M.Mohamed Yacoob, given before ASP Sub Division I he has stated that Sri.P.Arumugam has fraudulently impressed the Oblong Money Order stamp of Jafferkhanpet PO on the bogus Money Orders without his knowledge and has managed to issue bogus Money Orders. He further stated the Sri.P.Arumugam prepared High Value Money Order list and Register list and included the bogus Money Orders in the Register bag and the outsider himself has adviced the Money orders in his own handwriting and affixed his initials in the place of PA and Postmaster".
Therefore, finding fault with the Enquiry Officer for placing reliance on the statements made by the first respondent during preliminary enquiry by the Tribunal has no substance.
13.The other reason given by the Tribunal for interfering in the order of compulsory punishment namely, the culprit P.Arumugam was not examined as a witness in the enquiry, also does not appear to be correct.
14.The learned counsel for the petitioners has brought to our notice that criminal prosecution was lodged against the said P.Arumugam and he was absconding. In those circumstances, the Department could not be faulted for non-examination of the said P.Arumugam.
15.Moreover, we feel that the examination of P.Arumugam is not relevant, since the charge was not that the first respondent was also involved in the commission of issuing bogus money orders along with the said P.Arumugam. Since the charge was that he failed to exercise proper supervision over the said P.Arumugam thereby permitting him to use oblong money order stamp and to prepare High Value Money Order list and Register list and the said P.Arumugam issued bogus money orders and caused loss to the Department. As stated above, the first respondent himself admitted that the said P.Arumugam used the oblong money order stamp and the said P.Arumugam prepared the Register list and High Value Money Order list, while those duties did not pertain to him. Further, it is not a criminal trial and it is only a departmental enquiry and the non-examination of the said P.Arumugam in the departmental enquiry could not vitiate the disciplinary proceedings. Hence, this reason of the Tribunal for interfering in the order of punishment was also not acceptable to us.
16.However, the impugned order of the Tribunal could be sustained based on the third reason, i.e. the first respondent was discriminated in the matter of punishment, with certain modification. The Department itself admitted in the affidavit filed in support of this writ petition in paragraph No.14 in the following words:
"that no disciplinary action was initiated against the similarly placed persons and instead only recovery was ordered against them"
In paragraph No.19(f) of the affidavit, the petitioners have stated as follows:
"(f) The 2nd respondent on non application of mind has come to conclusion that the petitioner / department has not taken any action against the others like Sri.T.R.Ganesh and Sri.S.Lakshmanan who worked in the Jaffarkhanpet Post office for short period. In the instant case, the department has also taken action against said two officials. The said two officials have credited the loss amount in respect of the issue of bogus money orders, which were happened during their period of officiation".
17.The learned counsel for the petitioners relied on the decisions of the Honourable Supreme Court in Ajay Jadhav Vs. Government of Goa reported in 1994 (4) LLN 73 and in M.Singh Vs. State of Haryana reported in 2008(4) LLN 113 in support of his submission that the petitioners should not discriminated the first respondent in imposing the punishment of compulsory retirement while others were imposed with the penalty of recovery alone. It was further contended that the action of the petitioners are arbitrary and violative of
Article 14 of the Constitution. In any event, it was submitted that when the Tribunal thought it as a fit case to interfere in punishment and to order reinstatement, that too depriving entire back wages, this Court could not exercise its extraordinary jurisdiction under
Article 226 to interfere with the same.
18.The learned counsel for the petitioners argued that since the first respondent did not come forward to recoup the loss caused by the said P.Arumugam due to his lack of supervision, the Department has no other option but to initiate disciplinary proceedings, while the others readily agreed for recovery towards the loss caused to the Department. Further, he pointed out that the said P.Arumugam issued large number of bogus money orders while working under the first respondent and comparatively it was less number of bogus money orders in the case of others. The learned counsel pointed out that the recovery of Rs.24,480/- was imposed on Smt.N.Sundaribai, Rs.2,000/- from Shri. Ganesan and Rs.26,074/- from Shri.Lakshmanan, while the loss suffered was heavy due to negligence of the first respondent. The learned counsel also pointed out the findings of the Tribunal to the effect that the order of the Tribunal should not be interpreted as one totally exonerating the first respondent from the charges and the Tribunal deprived back wages only on that score.
19.Taking into account all those facts, we are not inclined to interfere with the order of reinstatement ordered by the second respondent Tribunal. However, we direct the petitioners to recover the amount of loss caused to the Department due to the negligence of the first respondent, but in easy installments.
20.Accordingly, the writ petition is disposed of with a direction to the petitioners to recover from the salary of the first respondent the amount of loss caused to the Department due to the negligence of the first respondent in easy installments. The order dated 17.07.2008 in O.A.No.844 of 2007 is modified to the extent indicated above. No costs.
TK To
1.The Director of Postal Services Government of India Chennai City Region, Chennai 600 002.
2.The Sr.Superintendent of POs., Chennai City South Division, Chennai 600 017.
3.The Registrar Central Administrative Tribunal High Court Buildings, Chennai 600 104