65. Model Representation – Contributory factor huge recovery proceedings
This is another case one official was charge sheeted for not verifying the joint custodian signature in the daily account and decided to impose huge recovery. This was the draft submitted at that time.
At the outset, I deny the allegations and assert that I am not at fault in the case framed against me. The primary allegation against me is the purported failure to notice that the Sub Postmaster (SPM) himself had signed the joint custodian column in the daily accounts dated 23.5.2015 & 29.5.2015. It is alleged that my failure to verify the joint custodian signature contributed to the fraud that occurred at ………..SO.
I submit that these allegations are incorrect. As per Rule 45 (4) of Volume VI Part III, "in the case of daily account received from a S.O where one or more assistants are employed in addition to the Sub postmaster, the sub account assistant should see that it bears the signatures of the Assistant and the SPM." Accordingly, I observed that the daily accounts in question bore the signatures of both the SPM and a Postal Assistant. The absence of signatures in either column would have constituted a violation of these rules.
It is pertinent to point out that Sub Account Postal Assistants (PAs) are not routinely informed about the specific officials working in each Sub Office, nor about the leave or officiating arrangements of staff, which occur frequently in both single and double-handed offices. It was a common practice that whenever the PA/SPM proceeded on leave, the individual holding the charge of SPM would sign both the SPM and Joint Custodian columns.
On the dates in question, I observed two signatures on the daily accounts, consistent with the procedure that was hitherto practiced. Moreover, under the pressure of daily work, it was not feasible to independently verify both signatures and confirm any specific officiating arrangements made by the Divisional Office. This procedural adherence should not be misconstrued as negligence to fix me as a scapegoat in a major fraud that, as I have come to understand, arose due to the oversights of the inspecting authorities.
It is pertinent to mention that as I am not directly responsible for the loss sustained by the Government in this case, no action should be taken against me as per Rule 11 of CCS (CCA) Rules 1965. The onus of direct responsibility does not rest with me, and this technicality should not be used to malign me in this case. I submit that merely focusing on technical formalities, while disregarding the pertinent facts, extenuating circumstances, and realities of the situation, is unjust and should not lead to me being made a scapegoat.
I wish to submit that the Directorate has provided clear instructions vide its letter No. 8-4/2005-Inv. dated 15.5.2008, which inter alia states:
“It has been brought to the notice of the Directorate that staff is being harassed on contributory factors for simple and flimsy reasons by misusing the provisions of unbecoming of Govt. servant deviating the ruling contained in the various Departmental volumes and huge recoveries are being ordered by the Disciplinary Authorities in contravention of the provisions of the rules."
In this context, it is reiterated that acts and conduct amounting to misconduct are prescribed in GOI's decision (23) and cases of trivial nature should be eliminated vide GOI's decision (24) below Rule 3 C of the CCS (Conduct) Rules. 1964. The alleged oversight in my case, in the context of established practices and workload, should be considered a trivial matter not warranting disciplinary action.
Regarding the imposition of penalty or recovery, DGP&T order No. (12) below Rule 11 of the CCS (CCA) Rules, 1965 stipulates that:
"...the penalty of recovery can be imposed only when it is established that the Government Servant was responsible for particular act or acts of negligence or breach of orders or rules and that such negligence or breach caused the loss."
In my case, it has not been established that my alleged failure to independently verify the signatures was the direct cause of the fraud.
From the above, it is evident that I should not be held responsible on frivolous and fabricated grounds, as I acted in good faith and with honesty towards the Department. Any unintentional error should be condoned as per Rule 204 (A) in Volume III.
I further submit that as per DG P&T No 114/176/78 – Disc II dated 13.2.1981, it is emphasized that the disciplinary authority must not merely establish certain lapses on the part of the Government servant but must also explain the facts leading to the loss and the manner in which the lapses had a direct link with the loss sustained by the Department. Charges cannot be framed on presumption and assumption without a clear violation of specific rules. In my case, the charge appears to be based on an assumption of direct responsibility without clearly establishing the causal link to the fraud.
Furthermore, I submit that I am not directly responsible for the loss sustained by the Department as per Rule 11(iii) of CCS CCA Rules 1965. I further draw your attention to the Directorate letter No. 15-9/74-INV dated 10.02.1975, which inter alia emphasizes the need to consider extenuating factors and the question of recovery, stating:
"However, it has been observed that recoveries for loss are being affected even from the officials held remotely guilty of contributory negligence. This creates a feeling of frustration and insecurity, instead of aiming at efficient and proper services, the staffs are prone to adopt a defensive posture to work. It is, therefore, necessary that these rules be implemented in proper spirit. The primary consideration need not be question of recovery of the loss in full. Sometimes, the supervisory officials who may be remotely connected with the case, are punished with recovery solely for this purpose. The default of, (or lapses of), each official should be judged carefully, to see if his offence merits recovery and/or any other punishment. Pecuniary responsibility need not be fixed for mere routine and petty lapses. For effecting recovery negligence should have been the direct or proximate cause of the loss to the Government and loss sustained was a probable consequence of that lapse."
I am fortified by the Directorate's orders stated above, and I respectfully submit that I may be excused for the alleged single lapse, which was not the direct contributing factor to the loss sustained due to the fraud. Departmental guidelines emphasize that recovery should not be effected unless the official is directly responsible for the loss. As I am not guilty of directly perpetrating this fraud, I should not be made a scapegoat. In accordance with Central Civil Services (Classification, Control and Appeal) Rules, 1965 Rule 11(3), pertaining to Recovery:
"Unless the persons concerned is directly responsible for misappropriating any amount or for any pecuniary loss to the Govt.-- No recovery can be made from him."
I further submit that in the case of Ramaiah vs UOI 1985 Lab IC NOC 4, it was held that the decision of the disciplinary authority must be based on legal evidence, and even a minor penalty cannot be imposed on suspicion alone. In my case, the charges appear to be framed on presumption and assumption, without clear evidence of a direct violation of specific rules that directly led to the fraud.
As per Rule 107 & 108 of Volume III, "in the case of loss to the Govt. the competent disciplinary authority should correctly assess in a realistic manner the contributory negligence on the part of an officer and while determining any omission or lapses on the part of an office, the bearing of such lapses on the loss consider on the extenuating circumstances in which the duties were performed by the officer, shall be given due weight.” In my case, the extenuating circumstances of working in the Divisional Office with a heavy workload and without specific norms for this particular verification process have not been adequately considered. My diligent service in the Divisional Office as an OA has not been appreciated while issuing this charge sheet.
It is well-settled law, as held in the case of Sri R.Balakrishnan v Union of India & others in OA 1496 of 1992 decided on 02.12.93 in CAT, Madras Bench - 166 Swamy's Case Law Digest 1994 I:
"Unless and until the quantum of the pecuniary loss caused by negligence is properly assessed and quantified, there can be no punishment of recovery from pay".
Accordingly, there should be no attempt to make me a scapegoat while potentially pardoning the actual culprits, including the ASPOs who were instrumental in this fraud case.
In the case of Smt. Kalpana Shinde and ors v Union of India - OA Nos. 344/2003, 353/03, 354/03, 355/03 & 357/03-decided on 22.11.2004- CAT ,Jabalpur Bench (Circuit at Gwalior) -ATJ 2005(1)-45, it was held that as per Rule 11(3) of Central Civil Services (Classification, Control and Appeal) Rules, 1965:
"Recovery should not be made unless the persons concerned is directly responsible for misappropriating any amount or for causing any pecuniary loss to the Govt.-- No recovery can be made from him."
In this case, I am not at all directly responsible for the loss sustained by the Department due to the fraud that occurred in the post office, which appears to be a consequence of the negligence of the inspecting officers and potentially the main offender.
In accordance with DG (P) No 4-66/TN-16/2009 – Inv dated 19.3.2015, it is clearly envisaged that as per Rule 14 of P&T Manual Vol II, there is a requirement to move an application in the Court for the transfer of money recovered through fines imposed by the Government on the offenders to the Department of Post. Prior to this, all possible efforts should be made well in time for the recovery of the loss sustained by the Department from the main offender as per the PAD Act 1850, which stipulates the identification of all movable and immovable properties of the persons who collect money from the public for depositing with the Government and their family members through departmental sources, and intimation to revenue authorities to stop alienation and facilitate recovery of the loss. In this fraud case, there appears to be no proactive action initiated by the Divisional Administration to confiscate the movable and immovable properties of the main offender, and he has seemingly gone scot-free after dismissal from service. The onus of non-recovery, therefore, potentially lies with the Divisional Administration, for which I should not be made a scapegoat.
Therefore, I humbly beseech the benign and erudite SSPOs, …….., to drop the action under Rule 16, considering the above submissions and my unblemished service record so far. I earnestly request to be excused, for which kind act I shall remain forever grateful.
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