IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 24TH MARCH 2008 / 4TH CHAITHRA 1930 WP(C).No. 3684 of 2005(S) ------------------------------------- OA.801/2002 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH. .................... PETITIONERS: --------------------- 1. SUPERINTENDENT OF POST OFFICES, KASARAGOD DIVISION, KASARAGOD-671 121. 2. DIRECTOR OF POSTAL SERVICES, OFFICE OF THE POSTMASTER GENERAL, NOERTHERN REGION, CALICUT-11. 3. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF COMMUNICATION, NEW DELHI. BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.S.G. RESPONDENTS: ----------------------- 1. K. KANNAN, S/O. LATE P. KANNAN, BRANCH POSTMASTER, VALIYAPOIL P.O., (UNDER ORDERS OF REMOVAL FROM SERVICE) RESIDING AT KOTHUR HOUSE, VALIYAPOYIL P.O., VIA. CHERUVATTUR, KASARAGOD DISTRICT. 2. K. SUKUMARAN, SDI OF POST OFFICES, NILESWARAM. 3. M. SASINDRAN, INQUIRY OFFICER & ASPOS (HQ) KASARAGOD DN., KASARAGOD-671 121. BY ADV. SRI.O.V.RADHAKRISHNAN (SR.). THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/03/2008 ,THE COURT ON 24/03/2008 DELIVERED THE FOLLOWING: W.P.(C). NO.3684/2005-S: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE O.A. NO. 801/2002 FILED BY THE R.1. HEREIN BEFORE THE CAT, ERNAKULAM DT. 10/11/2002. EXT.P.2: COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS HEREIN IN O.A. NO. 801/2002 DT. 05/02/2003. EXT.P.3: COPY OF THE ORDER OF THE CAT, ERNAKULAM IN O.A 801/2002 DT. 09/11/2004. EXT.P.4: COPY OF THE ORDER OF THE CAT, ERNAKULAM IN O.A. 459/2002 DT. 29/10/2004. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. C.N. Ramachandran Nair & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) NO.3684 of 2005-S - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of March, 2008. JUDGMENT T.R. Ramachandran Nair, J. The respondents in O.A. No.801/2002 are the petitioners herein. The Central Administrative Tribunal, as per the impugned order set aside Annexures A1 to A3 orders and directed to reinstate the first respondent in service along with the entire back wages. 2. The applicant was functioning as Extra Departmental Branch Postmaster at Valiyapoyil Post Office. He was issued with a memo of charges, Annexure A3, alleging misappropriation of Rs.1,545/-. The applicant denied the charges. An enquiry was conducted thereafter. After submission of the report, he was issued with a show cause notice, Annexure A13 which was duly replied by him. As per Annexure A15, he was ordered to be removed from service. The appeal filed challenging the punishment, was rejected as per Annexure A17. Challenging these proceedings, the Original Application was filed by the applicant. 3. The Tribunal considered the matter elaborately. The sum and substance of the allegation as noted above, was that there was a shortage of WPC 3684/2005 -2- Rs.1,545/-. This was noticed at the time of inspection by the Sub Divisional Inspector on 23.2.2000 at about 12 O' clock. In fact, the shortage was credited by the applicant immediately. His explanation was that on 22.2.2000 after getting information that his mother-in-law was seriously ill, he closed the office entrusting the balance cash with his sister who is residing close by for safe custody. On the next day he could not bring the money in the morning, as his sister had gone out and immediately after the inspection, this money was produced by his wife and credited to the office account. Reliance was placed on Rule 217 Chapter III of the P & T Manual Volume V. The same is extracted below: “217. Deficiency in the cash or stamp balance:- If a supervising officer finds a deficiency in the cash or stamp balance of a post office or record office, the postmaster or treasurer or both in the case of post office or the record Clerk in the case of record offices should be called upon to produce the money or stamps. If the official or officials cannot do so and are unable to give satisfactory explanation an inventory of the cash and stamps actually found should be drawn up and got signed by two independent witnesses and action should be taken as prescribed in the rules on the subject of Criminal Offences in Chapter IV Posts and Telegraphs Manual, Volume II. Note 1 – All extra departmental sub and branch postmasters, whether their offices are provided with iron safe or not, are required to make their own arrangements for the safe custody of cash valuables on their own responsibility. Note 2 – In the case of a sub or branch office in charge of an extra departmental agent when a deficiency in the cash or stamp balance noticed by a supervising officer, time should be given to the extra- WPC 3684/2005 -3- departmental agent to send for the cash, stamps, etc. and no charge of fraud should be made against him, unless he is unable to produce the full balance shown by the accounts within “the time required for going to and coming back from the place where the cash is kept for safe custody.” 4. The Tribunal was of the view that going by the said rule, there is a requirement of giving the Branch Postmaster sufficient time to bring the money found short, as it was clearly meant as a safeguard to the Branch Postmaster who may for their own safety have to keep the office cash and valuables in safe custody in their residence or any other place. If the money could not, for any reason, be brought to the office in the morning when the Branch Postmaster came to open the office, he should be given time to produce the money and only on failure to produce it within a reasonable time and not being able to explain the reason for that, action should be taken for fraud in terms of the rules. The Tribunal, as a matter of fact, found that in this particular case, as the applicant has, within the shortest time possible, brought the money and credited the same, the action on the part of the Sub Divisional Inspector in drawing up the inventory unattested by independent witnesses and proceeding against the applicant against the rules, is arbitrary and vitiated. The Tribunal was of the view that the absence of a proper inventory prepared in the presence of independent witnesses and not examining such witnesses, is clearly against the above WPC 3684/2005 -4- rules. Accordingly, the applicant was exonerated. 5. Learned counsel for the petitioners submitted that the view taken by the Tribunal is not correct. 6. We heard Shri P. Parameswaran Nair, learned Asst. Solicitor General for the petitioners and learned Senior Counsel Shri O.V. Radhakrishnan for the first respondent. Learned Senior Counsel appearing for the first respondent submitted that the explanation offered by the applicant, in the circumstances of the case, should have been accepted by the authority. Clearly, the procedure prescribed under Rule 217 had not been followed and actually there was no misappropriation at all. The available cash was only Rs.1,545/- and he had to keep it in safe custody, but on 22.2.2000 he had to leave station to see his mother-in-law who was seriously ill. It is therefore submitted that the view taken by the Tribunal is perfectly justified on the facts of the case. 7. We find that the view taken by the Tribunal is a plausible view on the facts and evidence of the case. In fact, going by Rule 217, Chapter III of the P & T Manual Volume V, if a deficiency in the cash balance of a Post Office is found out by the supervising officer, the official concerned should be called upon to produce the money. Only if the official cannot do so and is unable to give satisfactory explanation, then only an inventory should be WPC 3684/2005 -5- drawn up and got signed by two independent witnesses. Herein, the Inspector visited the office at 12 O' clock and immediately the money which was found short, was brought by the applicant. As found by the Tribunal, an inventory was not prepared in tune with Rule 217 of the Rules. In view of the above factual finding which cannot be said to be perverse, we see no ground to interfere with the finding that the applicant is not guilty of the charges. 8. Learned counsel for the petitioners then argued that the direction to pay entire back wages is not correct and the approach made is not in tune with the well accepted principles. While admitting the writ petition, a Division Bench of this court by order dated 2.2.2005, had directed the reinstatement of the first respondent in service forthwith subject to the final decision in the writ petition. It was made clear that the question of payment of back wages can be considered at the time of final disposal of the writ petition. We find that, in view of the facts and circumstances of the case, the direction to pay entire back wages has to be modified and the entitlement of back wages is limited to 75% which will be just and WPC 3684/2005 -6- reasonable. Subject to the above modification, the writ petition is dismissed. (C.N. Ramachandran Nair, Judge.) (T.R. Ramachandran Nair, Judge.) kav/ WPC 3684/2005 -7- C.N. Ramachandran Nair & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - I.T. - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 17th March, 2008.