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* IN THE HIGH COT]RT OF DELHI AT
+ W.P. (C) s2r6l20r3 & CM rr7r9/20r3 (stay)
MAHINDER SINGH DAHIYA
NEW DELHI
Through: Mr. Deepak Verma,
* IN THE HIGH COT]RT OF DELHI AT
+ W.P. (C) s2r6l20r3 & CM rr7r9/20r3 (stay)
MAHINDER SINGH DAHIYA
NEW DELHI
Through: Mr. Deepak Verma,
VERSUS
UMON OF INDIA ..... Respondent
Through: Mr.Amrit Pal Singh, CGSC with
Mr.Manish Goyal, Adv.
Through: Mr.Amrit Pal Singh, CGSC with
Mr.Manish Goyal, Adv.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE NAJMI WAZIRI oh 13.09.2013
Issue notice. Mr.Amrit Pal Singh, learned counsel accepts notice on behalf of the respondent.
The petitioner is aggrieved by the order dated 1" February, 2013 passed by the Central Administrative Tribunal. At the relevant time, he was appointed to Postal Service in Delhi Circle as a direct recruit on 1" August, 1973. While working as the Sub-Post Master in
Delhi University, he was required to deposit an amount of
Rs.1,00,750/- being 50% of the loss sustained by the Postal department due to alleged fraudulent encashment of 10 National
Saving Certificates of Rs.10,0001- each at Shakti Nagar, Post Office
2013:DHC:7131-DB on 9th Muy, 2001. The petitioner represented against this move; an inquiry was held which resulted in the removal of the petitioner on
2gft April, 2008; statutory appeal was declined and the petitioner ultimately moved the CAT by filing an OA no.350/2009'
On l't September,2010, the CAT partly allowed the petition, set aside the impugned order and directed the appellate authority to re-consider the contentions of the petitioner as well as the aspect of proportionality of the punishment. Thereafter, taking into consideration, the features of the case and the findings, the Appellate authority by the order dated 20ft December, 2OlO, imposed a set of lesser punishment. The operative portion of the Appellate Authority's order, reads as under:-
,,Takingallaspectsintoconsiderationandkeeping in mind the
-gravity of offense, I, set aside the earlier punishment irder ro.Ft/V-t/04-05 dated 28.04.2008 and
-order that shri M.S.Dahiya, appellant is reduced to the post of Postal Assistant in the pay band of Rs'5'200-
.20,200/.withgradepayofRs.2400andpayinthepay. bandtobeRs-Z,sI0w.e'f'thedateoforiginal punishment order till retirement. It is further ordered thatanamountofRs'2,01,500(RupeesTwoLakhOne
Thousand and Five Hundred only) be recovered in 24 monthlyinstalments@Rs.6000/.p.m.&theremaining
Rs.57,500 (Rupees Fifty Seven Thousand Five Hundred onty) be recovered frotm his arrears of pay' Shri M'S' ninfya tu be reinstated with immediate effect'
I t/
/
The petitioner's attempt for securing review of the punistlment was unsuccessful; he approached the CAT again. By the impugned order, the CAT took note of various contentions and ultimately held as follows:
"6. We are not inclined to interfere in the matter except to make an observation that since 50% of the loss caused to the government is being recovered from Shri
Bhim Singh, Counter Assistant, it would only be fair to recover the remaining half of the loss i.e. Rs.1,00,750/- fro* the applicant in place of the total amount of
Rs.2,01,500/-. The OA is, therefore, disposed of with direction to the respondents to reduce the amount being recovered fro* the applicant to 50% of the total loss caused i.e. Rs.1,00,750/-. OA stands disposed of with the above direction. "
The learned counsel for the petitioner urged that the penalty imposed is too harsh. It was argued that the imposition of the penalty of reduction in rank and freezing of pay at Rs.7,510/- for about five years, itself was a major penalty and on top of it, the direction to recover further amounts, amounted to multiple penalties for the same misconduct.
The learned counsel for the respondent, who is present on an advance notice, urged that the impugned order should not be interfered with. It was submitted that the appellate authority took note of all the aspects including the question of proportionality and after duly applying its mind passed an elaborate order which the
Tribunal chose not to interfere with. In these circumstances, it would not be appropriate for the Court to interfere with the penalty.
This Court notices that the Tribunal took note of the contentions including the argument about the multiple penal effects of the various directions. Thereafter, the Tribunal granted limited relief to the extent that since 50o/o of loss caused to the Government was recovered from the other delinquent employee viz. Bhim Singh, it was only fair to recover the remaining half from the petitioner. This Court is not inclined to interfere with the order of the CAT. The only observation of this Court is that as a consequence of the Appellate
Authority's order, it would appear that due to possible interpretation, the petitioner's pension could be frozen on the basis of his pay that was directed to be kept so w.e.f. 28th April, 2008 i.e. Rs.7510/- (in the
Pay Band of Rs.5200-202001- with Grade pay of Rs.2400). In the opinion of this Court, there is indeed some ambiguity - as was urged on the part of the petitioner.
The recovery directed was in order to make up the loss suffered
/ by the Govemment. Consequently, the intention of the respondent was to impose penalty of reduction in the pay scale which was effected. As a consequence, for more than four years, not only was the petitioner put down in pay scale (pre-penalty being
Rs.9300-348001- with grade pay of Rs.4200), but also inflicted with the penalty of not earning any increment.
In these circumstances, it is clarified that the increments that the petitioner would have otherwise earned shall be notionally fixed at the appropriate stage and the highest grade, in the scale of
Rs.5200-202001-, as if he had actually earned the increment (without actually releasing the arrears of pay fixation) but only for the purpose of calculation of pension.
The impugned order is modified to the petition is disposed off accordingly.
SEPTEMBER 13. 2013
RN above extent. The
NAJMI WAZIRI, J
HON'BLE MR. JUSTICE NAJMI WAZIRI oh 13.09.2013
Issue notice. Mr.Amrit Pal Singh, learned counsel accepts notice on behalf of the respondent.
The petitioner is aggrieved by the order dated 1" February, 2013 passed by the Central Administrative Tribunal. At the relevant time, he was appointed to Postal Service in Delhi Circle as a direct recruit on 1" August, 1973. While working as the Sub-Post Master in
Delhi University, he was required to deposit an amount of
Rs.1,00,750/- being 50% of the loss sustained by the Postal department due to alleged fraudulent encashment of 10 National
Saving Certificates of Rs.10,0001- each at Shakti Nagar, Post Office
2013:DHC:7131-DB on 9th Muy, 2001. The petitioner represented against this move; an inquiry was held which resulted in the removal of the petitioner on
2gft April, 2008; statutory appeal was declined and the petitioner ultimately moved the CAT by filing an OA no.350/2009'
On l't September,2010, the CAT partly allowed the petition, set aside the impugned order and directed the appellate authority to re-consider the contentions of the petitioner as well as the aspect of proportionality of the punishment. Thereafter, taking into consideration, the features of the case and the findings, the Appellate authority by the order dated 20ft December, 2OlO, imposed a set of lesser punishment. The operative portion of the Appellate Authority's order, reads as under:-
,,Takingallaspectsintoconsiderationandkeeping in mind the
-gravity of offense, I, set aside the earlier punishment irder ro.Ft/V-t/04-05 dated 28.04.2008 and
-order that shri M.S.Dahiya, appellant is reduced to the post of Postal Assistant in the pay band of Rs'5'200-
.20,200/.withgradepayofRs.2400andpayinthepay. bandtobeRs-Z,sI0w.e'f'thedateoforiginal punishment order till retirement. It is further ordered thatanamountofRs'2,01,500(RupeesTwoLakhOne
Thousand and Five Hundred only) be recovered in 24 monthlyinstalments@Rs.6000/.p.m.&theremaining
Rs.57,500 (Rupees Fifty Seven Thousand Five Hundred onty) be recovered frotm his arrears of pay' Shri M'S' ninfya tu be reinstated with immediate effect'
I t/
/
The petitioner's attempt for securing review of the punistlment was unsuccessful; he approached the CAT again. By the impugned order, the CAT took note of various contentions and ultimately held as follows:
"6. We are not inclined to interfere in the matter except to make an observation that since 50% of the loss caused to the government is being recovered from Shri
Bhim Singh, Counter Assistant, it would only be fair to recover the remaining half of the loss i.e. Rs.1,00,750/- fro* the applicant in place of the total amount of
Rs.2,01,500/-. The OA is, therefore, disposed of with direction to the respondents to reduce the amount being recovered fro* the applicant to 50% of the total loss caused i.e. Rs.1,00,750/-. OA stands disposed of with the above direction. "
The learned counsel for the petitioner urged that the penalty imposed is too harsh. It was argued that the imposition of the penalty of reduction in rank and freezing of pay at Rs.7,510/- for about five years, itself was a major penalty and on top of it, the direction to recover further amounts, amounted to multiple penalties for the same misconduct.
The learned counsel for the respondent, who is present on an advance notice, urged that the impugned order should not be interfered with. It was submitted that the appellate authority took note of all the aspects including the question of proportionality and after duly applying its mind passed an elaborate order which the
Tribunal chose not to interfere with. In these circumstances, it would not be appropriate for the Court to interfere with the penalty.
This Court notices that the Tribunal took note of the contentions including the argument about the multiple penal effects of the various directions. Thereafter, the Tribunal granted limited relief to the extent that since 50o/o of loss caused to the Government was recovered from the other delinquent employee viz. Bhim Singh, it was only fair to recover the remaining half from the petitioner. This Court is not inclined to interfere with the order of the CAT. The only observation of this Court is that as a consequence of the Appellate
Authority's order, it would appear that due to possible interpretation, the petitioner's pension could be frozen on the basis of his pay that was directed to be kept so w.e.f. 28th April, 2008 i.e. Rs.7510/- (in the
Pay Band of Rs.5200-202001- with Grade pay of Rs.2400). In the opinion of this Court, there is indeed some ambiguity - as was urged on the part of the petitioner.
The recovery directed was in order to make up the loss suffered
/ by the Govemment. Consequently, the intention of the respondent was to impose penalty of reduction in the pay scale which was effected. As a consequence, for more than four years, not only was the petitioner put down in pay scale (pre-penalty being
Rs.9300-348001- with grade pay of Rs.4200), but also inflicted with the penalty of not earning any increment.
In these circumstances, it is clarified that the increments that the petitioner would have otherwise earned shall be notionally fixed at the appropriate stage and the highest grade, in the scale of
Rs.5200-202001-, as if he had actually earned the increment (without actually releasing the arrears of pay fixation) but only for the purpose of calculation of pension.
The impugned order is modified to the petition is disposed off accordingly.
SEPTEMBER 13. 2013
RN above extent. The
NAJMI WAZIRI, J
JUDGMENT