Central Administrative Tribunal - Ahmedabad
J.M. Makwana vs Union Of India (Uoi) And Ors. on 4 September, 2001
JUDGMENT A.S. Sanghvi, Member (J)
1. The applicant who was serving as a Postal Assistant, Chapp. was served with a minor penalty charge sheet on dated 19.5.98 leveling imputation of misconduct and negligence in duty and alleging inter alia that during the period from 6.7.95 to 1.1.97 he had failed to make entries in the passbooks of account nos. 25178 and 24978 in the special error book. It was also alleged that if the passbooks were called for by him, the fraud could have been detected earlier and huge amount of fraud could have been saved. The applicant had submitted his defence to the charge sheet by way of his representation dated 17.6.98. The disciplinary authority vide his order dated 20th July, 1989 imposed the penalty of withholding of one increment for a period of one year without cumulative effect and also directed recovery of Rs. 9000/- from his pay and allowance for the loss sustained by the department to be recovered in six installments of Rs. 1500/- per month. After an unsuccessful appeal against the levying of the penalty, the applicant has challenged this penalty order before us. According to Mr. Pathak, learned Advocate for the applicant, somebody else's sin is sought to be visited upon the applicant. He has pointed out that the charge leveled against the applicant was not that he perpetuated any fraud but as per the charge he had failed to make entry in the passbooks of two SB accounts in the special error book between the period from 6.5.95 to 7.3.96. According to Mr. Pathak, the applicant in its representation had pointed out to the authorities that he had not called for the passbook of account no 24978 as there was no transaction between the period from 6.7.95 to 7.3.96 and that the interest in the SB account No. 25178 was added after 4.5.96 is not correct as there was no entry of interest for the year 1995-96 in that passbook. Mr. Pathak has also submitted that the duty of the Postal Assistant is not to go and check the passbooks, it was for the ED BPM concerned to send the passbooks for verification as well as posting of interest. If a passbook is not sent by the concerned ED BPM. then the P.A cannot be held liable for not checking that passbook. Even otherwise, according to Mr. Pathak, not making entry in an error book can be a procedural irregularity and not the case of misconduct on the part of the Govt. servant. He has further submitted that the minor charge sheet could not have been issued to the applicant for an act where he was not concerned at all. He has also submitted that the applicant is neither alleged to have perpetuated the fraud nor it is alleged that he had assisted in any way in the commission of that fraud. The fraud was actually committed by the ED BPM of village Majadar, Mr. Mahendara Parmar and the same was not committed in a single transaction but from three type of money transactions i.e., from Saving Accounts, Manila Samruddhi Yojna and Recurring Accounts of the villagers. So far the amount alleged to have been misappropriated from Saving Accounts is concerned, it is only to the tune of Rs. 2,100/-, while the maximum amount is from Recurring Accounts and Mahila Samruddhi Yojna. The applicant was concerned with the Saving Accounts only and as such his liability could not have been more than Rs. 2,100/- only, even if he is held to be negligent in performing his duly. The order of the disciplinary authority imposing penalty of recovery of Rs. 9000/- and also withholding of one increment was clearly perverse and illegal. He has also attacked the appellate officer's order and submitted that for no fault of his the applicant has been awarded punishment of recovery as well as withholding of one increment. He has also submitted that the order being without application of mind and being void the same requires to be set aside. He has also relied on a decision in the case of C.N. Harihar Nandanan v. Presidency Post Master, Madras SPO decided by the Madras Bench of CAT on dated 12.9.88 and reported in (1988) 8 ATC 673, in support of his submission that in cases of fraud committed by another Govt. servant, recovery cannot be ordered from the pay of the applicant for being negligent.
2. On the other hand Mr. M. S. Rao, learned Advocate for the respondents has defended the action of the respondents in imposing the punishment of recovery as well as withholding of one increment and has submitted that due to the negligence of the applicant in not checking the passbooks in time, the fraud was committed. He has conceded the position that the applicant is not directly held responsible for the commission of the fraud but according to him if the applicant had been sufficiently vigilant the commission of the fraud could have been prevented.
3. According to Mr. Rao, the applicant was found negligent in performing his duty. Had he been vigilant and posted the entries in the error book as required under the rules, the fraud could have been detected much earlier. He has further submitted that the applicant had not followed the rules and procedure and this had facilitated the Sub Postmaster in misappropriating such a big account. He has empathetically submitted that whatever recovery is ordered against the applicant is in accordance with the rules and this Tribunal should not interfere with the orders of the recovery as the attempt of the department is to make good the loss sustained by the department. He has urged that the O.A be dismissed with costs.
4. We have carefully considered the rival contentions. We are disposing of this O.A at the admission stage with the consent of both the parties.
5. It is quite obvious from the pleadings and arguments of both the parties that the applicant was not charged with misappropriating any amount nor it was alleged that his integrity was doubtful. It is also not the allegation against the applicant that he was a co-conspirator in the misappropriation of the amount of Rs. 94,5517- by the Sub Postmaster. The only ground on which the punishment of the recovery as well as withholding of one increment is imposed on him is that he had not observed certain procedure prescribed by the rules and being negligent in not observing this procedure had facilitated the Sub Postmaster in misappropriating the said amount.
6. Even on factual aspects we are unable to accept the justification of the applicant being held guilty of the charges leveled against him. The applicant could have been held guilty if his vigilance in posting the SB Account No. 25178, 24978 in the error book would have prevented the commission of the fraud. It is interesting to note that the disciplinary authority i.e, the Superintendent of Post office, Banaskanthain his order has observed that if the applicant had acted as per the rules and followed the instructions of the department while working as SB Postal Assistant at Chappi, the fraud could have been detected earlier and the department could have been saved from the loss of Rs. 94,551/- only. He has not elaborated how the fraud could have been detected earlier but his remarks clearly suggest that the applicant could not have prevented the fraud as the fraud was already committed by somebody else. Once the fraud was committed whether it is detected earlier or later on, could not have saved the department from the loss of Rs. 94,551/-. Under the circumstances, reasoning of the disciplinary authority is clearly erroneous. It is unreasonable to hold the applicant guilty of the charges leveled against him. If the applicant by due diligence could not have prevented the fraud from being perpetuated by somebody else then the question of his early or later detection pales into insignificant. The applicant could have been held guilty of the charges leveled against him, if due to any omission or commission on his part, the perpetuation of fraud by somebody else would have been possible or he himself was associated in perpetuating the fraud. In the instant case, the fraud was already commissioned by the Sub Postmaster of Chappi and the applicant is held guilty of being negligent in not detecting the same earlier. It is significant that he is not held guilty for not preventing the same. We have therefore no hesitation in concluding that the whole order of the disciplinary authority as well as of the appellate authority is based on misconception of the term negligence and in utter disregard to the provisions of Rule 13 (3) of the CCS (CCA) Rules. It appears that the disciplinary authority and the appellate authority believe that whenever some fraud has taken place in the department and there is loss of revenue, somebody should be held guilty for the loss caused to the department. It is not kept in mind by the disciplinary authority as well as the appellate authority that the rule providing for imposing penalty i.e., Rule 11(3) of CCS (CCA) Rules clearly lays down that the recovery can be imposed from the pay of the Govt. Servant if the pecuniary loss is caused by him to the Govt. by the negligence or the breach of the orders. We fail to understand how the penalty of recovery of Rs. 9000/- could have been imposed by the disciplinary authority on the applicant and confirmed by the appellate officer, when the charges leveled against the applicant is not that, he by his act of negligence caused any pecuniary loss to the Govt. The charge leveled against the applicant was that by his negligence in not posting the entries of passbooks in the error book, the fraud was not detected earlier. There is no charge that due to his negligence any pecuniary loss was caused to the Govt. We have therefore no hesitation in concluding that the impugned order of the disciplinary authority as well as appellate authority is not only perverse and illegal but also lacks bonafide.
7. Even if, for a moment we believe that applicant was negligent in not posting the entries of the passbook in the error book, then also this negligence was not such that it would be a cause for punishing the applicant with recovery of loss sustained by the department as well as with holding of one increment, The applicant obviously is not directly responsible for the misappropriation of this amount and therefore the recovery if any was to be made for the loss of the amount ought to have been made from the person directly responsible for the misappropriation. Merely because the department found that it was not possible to recover the amount from the main culprit, some other scapegoat cannot be found out and cannot be levied with the punishment of recovery of the loss. We are fortified in our conclusion by the judgment of the Madras Bench of this Tribunal in the case of C.N. Harihar Nandanan v. Presidency Post Master, Madras SPO (supra). There also in the similar situation the employee was sought to be made responsible for the pecuniary loss caused to the Govt. on the ground that he was negligent in performing his duty. He was also tried to be made technically responsible due to the non-compliance of the instructions by not getting every sixth transaction entry properly verified. Quashing the recovery order, the Madras Bench has observed that the applicant was not directly responsible for causing any pecuniary loss of the Govt. and at the best he can be said to be technically responsible. He therefore cannot be made to recover the loss sustained by the department. We are in agreement with the ratio laid down in this judgment and applying the same to the facts of the present case we hold that the applicant cannot be made responsible for the criminal act of some body else and the order of the recovery of the loss to Govt. from the salary of the applicant cannot be sustained. The same view is taken hy us in the ease of S.K, Chaudhary v. UOI and Ors. in O.A. 504/96 decided on dated 26th March, 2001. In the conclusion therefore we allow this O.A and quash and set aside the impugned order of withholding of one increment as well as order of the recovery of Rs. 9000/- issued by the S.P. Banaskantha Palanpur on dated 20th July, 98 and confirmed by the appellate officer and direct the respondents to refund to the applicant any amount if recovered from the salary of the applicant by way of recovery on account of this order within 3 months of the receipt of the copy of this order, failing which the same will have to be refunded with running interest at the rate of 12% per annum. No order is passed as to costs.