Central Administrative Tribunal - Jabalpur
Sada Nand Giri vs Union Of India Through Its Secretary on 11 August, 2015
RESERVED
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH,
JABALPUR
Original Applications Nos.213, 214 &215 of 2012
Jabalpur, this Tuesday, the 11th day of August,2015
Mr. G.P. Singhal, Administrative Member
Mr. U. Sarathchandran, Judicial Member
Sada Nand Giri, S/o Shri G.C. Giri,
Aged about 41 years, r/o Sub Post Master,
Ghodadunguri, District Betul-460443 (M.P.). -Applicant
(By Advocate Shri Vijay Tripathi)
V e r s u s
1. Union of India through its Secretary,
Ministry of Communication & IT, Department of Posts,
Dak Bhawan, Sansad Marg, New Delhi 110001.
2. Chief Post Master General, M.P. Circle,
Hoshangabad Road, Bhopal 462012 (M.P.).
3. Director, Postal Services, o/o Chief Post Master General,
M.P. Circle, Hoshangabad Road, Bhopal 462012 (M.P.).
4. Superintendent of Post Offices,
Chhindwara Division, Chhindwara-480001 (M.P.) - Respondents
(By Advocate Shri Manish Chourasia in OA 213/2012 &
Shri A.P. Khare in OAs 214&215/2012)
(Date of reserving the order: 13.07.2015)
COMMON ORDER
By G.P. Singhal, AM.-
These three Original Applications Nos. 213, 214 & 215 of 2012 have been filed by the same applicant against three different minor penalty charge-sheets issued to him. In Original Application (for brevity OA) No.213/2012, he is aggrieved by issuance of charge sheet dated 15.03.2011 under Rule 16 of the 1965 Rules and the order dated 30.06.2011 imposing minor penalty of recovery of Rs.17,488/- on the Applicant for his alleged misconduct of gross negligence in his work which facilitated commission of fraud by the GDS, BPM of Jawara EDBO (Betul Bazar SO) to the tune of Rs.10,51,391.90p. In OA No. 214/2012, he is aggrieved by issuance of charge sheet dated 15.03.2011 under Rule 16 of the 1965 Rules and the order dated 05.08.2011 imposing minor penalty of recovery of Rs.71,354/- on the Applicant for his alleged misconduct of gross negligence in his work which facilitated commission of fraud by the GDS, BPM of Ranipur EDBO to the tune of Rs.12,62,607/-. In OA 215/2012, the Applicant is aggrieved by issuance of charge sheet dated 9.3.2011 under Rule 16 of the 1965 Rules and the order dated 28.07.2011 (Annexure-A-2) imposing minor penalty of recovery of Rs.10971/- on the Applicant for his alleged misconduct of gross negligence in his work which facilitated commission of fraud by the then SPM and PA Shahpura S.O. He is also challenging the order of the appellate authority dated 10.01.2012 (Annexure A-3 in all three OAs) whereby his appeal against the said punishment orders has been rejected by the appellate authority.
2. Since issue involved in all these OAs is more or less identical, they are being disposed of by this common order.
3. In Original Application No.213 of 2012 the applicant has been charged for failure to keep a watch on receipt of certificates from SPM Betul Bazar about annual interest posting for the year 2003-2004 in all the pass books of SB accounts of Betul Bazar SO as per rule 76(b) of the PO SB Manual Vol.I and para 1.17 of SB order No.7/2003 as issued vide D.G.letter No.35-15/86-SB New Delhi dated 27.03.2003 and as circulated vide SPOs Chhindwara Endst.Letter No.L1/SB/Rlg/2003 Chw dated 28.4.2003. The applicant in his reply dated 13.4.2011 has denied that he had committed any negligence and submitted that he has followed the procedure as prescribed in Rule 74 of the SB Manual Vol.I.
4. The respondents in their reply filed in OA No.213/2012 have mentioned that the applicant is not charge-sheeted for the violation of Rule 74 of SB Manual Vol.I, as has been mentioned by him in his reply dated 13.4.2011. The applicant has referred the old rule/procedure in his reply, which is not applicable now. According to the Rule 76(b) of the PO SB Manual Vol.I and Para 1.17 of SB Order No.7/2003 as issued by the Government of India, Ministry of Information & IT, Department of Posts vide No.35-15/86-SB dated 27.3.2003 (Annexure R-3 & R-4) the Sub-Post Master Betul Bazar, Sub Post Office had to submit a certificate to Head Post Office, and Divisional Office at the end of September of every year regarding posting of annual interest in all the pass books of Saving Bank Account at Betul Bazar Sub Post Office. During the course of enquiry of Jawara Branch Office fraud case and verification of pass books of defrauded SB accounts it was noticed that the Sub-Post Master, Betul Bazar SO had not called for all the pass books of SB accounts of Betul Bazar SO and its branch post offices including Jawara EDBO for posting of annual interest in the pass books and have also failed to submit such certificates for the year 2003-2004 by the end of September,2004 to concerned Head Post Office i.e. Betul Head Post Office. The applicant, who was working as Sub Office Ledger Assistant of Saving Bank Branch of Betul Head Post Office failed to keep a keen watch about it during his incumbency as Ledger Assistant Saving Bank Branch. Thus, the applicant failed to perform his duties properly and carefully and his negligence provided a room to the GDS BPM Jawara EDBO for committing a fraud.
5. In Original Application No.214 of 2012 the applicant has been charged for failure to keep a watch on receipt of certificates, about annual interest posting in all the pass books of SB accounts of Shahpura SO as per rule 76(b) of the PO SB Manual Vol.I and para 1.17 of SB order No.7/2003 as issued vide D.G.letter No.35-15/86-SB New Delhi dated 27.03.2003 and as circulated vide SPOs Chhindwara Endst.Letter No.L1/SB/Rlg/2003 Chw dated 28.4.2003.
6. The respondents in their reply filed in OA No.214/2012 have mentioned that the applicant is not charge-sheeted for the violation of Rule 74 of SB Manual Vol.I, as has been mentioned by him in his reply dated 21.3.2011. The applicant has referred the old rule/procedure in his reply, which is not applicable now. According to Rule 76(b) of the PO SB Manual Vol.I and Para 1.17 of SB Order No.7/2003 as issued by the Government of India, Ministry of Information & IT, Department of Posts vide No.35-15/86-SB dated 27.3.2003 (Annexure R-3 & R-4) the Sub-Post Master Shahpura had to submit a certificate to Head Post Office, and Divisional Office at the end of September of every year regarding posting of annual interest in all the pass books of Saving Bank Account standing at Shahpura Sub Post Office. During the course of enquiry of Shahpura SO fraud case and verification of pass books of defrauded SB accounts it was noticed that the Sub-Post Master Shahpura SO had not called for all the pass books of SB accounts of Shahpura SO for posting of annual interest in the pass books and had also failed to submit such certificates for the year 2003-2004 by the end of September,2004 to concerned Head Post Office i.e. Betul Head Post Office. The applicant, who was working as Sub Office Ledger Assistant of Saving Bank Branch of Betul Head Post Office failed to keep a keen watch about it during his incumbency as Ledger Assistant Saving Bank Branch. Thus, the applicant failed to perform his duties properly and carefully and his negligence provided a room to the SPM Shahpura SO for committing a fraud.
7. In Original Application No.215 of 2012 the applicant has been charged for failure to keep a watch on receipt of certificates, about annual interest posting in all the pass books of SB accounts of Ghoradongri SO for the years 2003-2004 and 2004-2005 as per rule 76(b) of the PO SB Manual Vol.I and para 1.17 of SB order No.7/2003 as issued vide D.G.letter No.35-15/86-SB New Delhi dated 27.03.2003 and as circulated vide SPOs Chhindwara Endst. Letter No.L1/SB/Rlg/2003 Chw dated 28.4.2003.
8. The respondents in their reply filed in OA No.215/2012 have mentioned that the applicant is not charge-sheeted for the violation of Rule 74 of SB Manual Vol.I, as has been mentioned by him in his reply dated 21.3.2011. The applicant has referred the old rule/procedure in his reply, which is not applicable now. According to Para 1.17 of SB Order No.7/2003 as issued by the Government of India, Ministry of Information & IT, Department of Posts vide No.35-15/86-SB dated 27.3.2003 (Annexure R-3) the Sub-Post Master Ghoradongri, Sub Post Office had to submit a certificate to Head Post Office, and Divisional Office at the end of September of every year regarding posting of annual interest in all the pass books of Saving Bank Account at Ghoradongri Sub Post Office. During the course of enquiry of Ranipur Branch Office (in account with Ghoradongri SO) fraud case and verification of pass books of concerned SB accounts it was noticed that the Sub-Post Master, Ghoradongri SO had not called for all the pass books of SB accounts of Ghoradongri SO and its branch post offices including Ranipur EDBO for posting of annual interest in the pass books and have also failed to submit such certificates for the year 2003-2004 and 2004-2005 by the end of September,2004 and 2005 to concerned Head Post Office i.e. Betul Head Post Office. The applicant, who was working as Sub Office Ledger Assistant of Saving Bank Branch of Betul Head Post Office failed to keep a keen watch about it during his incumbency as Ledger Assistant Saving Bank Branch. Thus, the applicant failed to perform his duties properly and carefully and his negligence provided a room to the GDS BPM Ranipur EDBO for committing a fraud.
9. The main contention of the learned counsel for the applicant is that even in the case of a minor penalty an opportunity has to be given to the delinquent employee to have his say or to file his explanation with respect to the charges against him. Moreover, if the charges are factual and if they are denied by the delinquent employee, an enquiry should also be called for. This is the minimum requirement of the principle of natural justice and the said requirement cannot be dispensed with. In the instant cases the applicants have expressly denied their charges still no full fledged enquiries were conducted against them under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 {hereinafter referred to as the CCS(CCA)Rules} . Hence the orders of punishment of recovery passed against all of them are liable to be quashed and set aside.
10. The learned counsel for the applicant placed reliance on the following decisions:
(i) G.M.Sorte Vs. Union of India and others, OA No.5 of 2013, decided on 15.6.2015 by Jabalpur Bench of this Tribunal, P.Sreeramulu Vs. The Supdt.of Post Offices & others, OA No.665/2008 decided on 8.6.2009 by Hyderabad Bench of the Tribunal, S.V.Santhoshkumar Vs. The Comptroller & Amp, etc. OA No.247 of 2010 decided on 22.9.2010 by Ernakulam Bench of this Tribunal, Shiv Bhushan Singh Vs. Union of India and others, OA No.497/2009 decided on 22.9.2011 by Allahabad Bench of this Tribunal for the analogy that if the charges are factual and if they are denied by the delinquent employee, an enquiry should also be called for by relying on the decision of Honble Supreme Court in the matters of O.K.Bhardwaj Vs. Union of India and others (2001) 9 SCC 180.
(ii) C.N.Harihara Nandanan Vs. Presidency P.M. Madras G.P.O. and another, (1988) 8 ATC 673 wherein the Madras Bench of the Tribunal has held that negligence of non-following of departmental instructions for verification of relevant records resulting in non detection of fraud committed by another government servant, not punishable with recovery from pay of the pecuniary loss caused by the fraud.
(iii) In J.M.Makwana Vs. Union of India, 2002 (1) ATJ 283 fraud was committed by another employee and the applicant was found responsible for the same on the ground that by his negligence the fraud was not detected earlier. There was no charge that due to his negligence any pecuniary loss was caused to Government. The Ahmedabad Bench of the Tribunal allowed the OA and quashed the order of recovery as well as the order of penalty.
(iv) Smt.Kalpana Shinde & others Vs. Union of India and others, (2005)1 ATJ 45 decided by Jabalpur Bench of the Tribunal, B.R.Verma Vs. Union of India and others, O.A. No.496/2008 decided on 14.9.2011 by Allahabad Bench of this Tribunal and Shiv Kumar Singh Solanki Vs. Union of India, OA No.2187/2009 decided by Principal Bench of the Tribunal for the analogy that unless the person concerned is directly responsible for misappropriating any amount or for causing any pecuniary loss to the Government no recovery can be made from him.
(v) V.G.Dekate Vs. Union of India and others, Writ Petition (S) No.5634/2009 decided by Honble High Court of Madhya Pradesh at Gwalior. In the said matter by considering the fact that the authority failed to prove the fact that the petitioner was only negligent in performing his duties so the fraud has been committed and that there were other officers also who could have been responsible in the act of fraud, the Honble High Court quashed the order of punishment.
(vi) In Than Singh Vs. Union of India and others, 2003(3) ATJ 42 the Honble High Court of Delhi has held that when a person is promoted without any demur whatsoever, unless it is shown that his promotion was subject to the order of disciplinary proceedings either contemplated or pending, it would be presumed that the same has been condoned.
(vii) M.P.State Agro Industries Development Corporation Ltd Vs. Jahan Khan, (2007) 10 SCC 88 wherein it was held that penalty of recovery of loss and stoppage of three increments with cumulative effect was a major penalty clearly envisage a regular enquiry before punishing the delinquent employee.
(viii) Roop Singh Negi Vs. Punjab National Bank and others, (2009) 2 SCC 570. In the said matter the appellant was a peon in respondent Bank. He along with others was involved in a case of theft of bank draft book. The Honble Supreme Court has held that orders of disciplinary and appellate authority entails civil consequences hence the orders must be based on recorded reasons.
(ix) Union of India and others Vs. Gyan Chand Chattar, (2009) 12 SCC 78, wherein the Honble Supreme Court held that in a case of corruption, the only punishment is dismissal from service. Therefore, the charge of corruption must always be dealt with keeping in mind that it has both civil and criminal consequences.
(x) Kuldeep Singh Vs. Commissioner of Police (1999) 2 SCC 10 wherein it has been held that court can interfere with finding of guilt if the same is based on no evidence or is such as could not be reached by an ordinary prudent man or is perverse or is made at the dictates of a superior authority.
(xi) Govt.of A.P. and others Vs. A.Venkata Raidu, (2007) 1 SCC 338 wherein it has been held that since the charge was not specific, hence no finding of guilt can be fixed on that basis.
(xii) Union of India and others Vs. J.Ahmed, (1979) 2 SCC 286. In the said matter the respondent-an IAS officer was removed from service. The Honble Supreme Court has held lack of efficiency or attainment of highest standards in discharge of duty attached to public office would not themselves constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty. In the said matter it has been further held that an act or omission which runs counter to the expected code of conduct would certainly constitute misconduct. Some other act or omission may as well constitute misconduct. It has been further held that if a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service it is misconduct.
11. Heard the learned counsel of parties and carefully perused the pleadings of the respective parties and the documents annexed therewith.
12. As regards the contention of the learned counsel for the applicant that since in these OAs charges levelled against the applicant were factual in nature and the applicant had denied them, enquiries should have been conducted, by relying on the decision of Honble Supreme Court in the case of O.K.Bhardwaj (supra), we find that in the said matter the Honble Supreme Court has held as under:
2. The High Court has recorded its opinion on two questions: (i) that the punishment imposing stoppage of three increments with cumulative effect is not a major penalty but a minor penalty; (ii) in the case of minor penalties, it is not necessary to give opportunity to the employee to give explanation and it is also not necessary to hear him before awarding the penalty: a detailed departmental enquiry is also not contemplating in a case in which minor penalty is to be awarded.
3. While we agree with the first proposition of the High Court having regard to the rule position which expressly says that withholding increments of pay with or without cumulative effect is a minor penalty, we find it not possible to agree with the second proposition. Even in the case of a minor penalty an opportunity has to be given to the delinquent employee to have his say or to file his explanation with respect to the charges against him. Moreover, if the charges are factual and if they are denied by the delinquent employee, an enquiry should also be called for. This is the minimum requirement of the principle of natural justice and the said requirement cannot be dispensed with.
4. Learned counsel for the respondent, however, says that though the second proposition of the High Court may not be correct, yet so far as this case is concerned it does not make any difference for the reason that in this case, as a fact an opportunity was given to the appellant and that there has been adequate compliance with the principles of natural justice. But since the High Court has not considered the matter from the above angle that is on merits the proper course in our opinion is to remit the matter to the High Court to consider whether an opportunity was given to the appellant to put forward his case and whether in the light of the facts and circumstances of the case, an enquiry was called for and if called for, was it held according to law and the principles of natural justice, and to dispose of the matter according to law. The appeal is allowed with the above directions. No costs.
13. The applicant in his representations before disciplinary authority as well as appeal memos did not ask for any open enquiry. He has not denied the allegations on the basis of facts but has simply taken a stand that it was not him but somebody else who was responsible for the negligence. To support his contention he has quoted rules, which were not applicable at the appropriate time in the department.
14. In all these Original Applications the applicant was issued minor penalty charge sheets under Rule 16 of the CCS(CCA) Rules specifically levelling the charge of gross negligence in his work which facilitated commission of fraud by others, and only after considering the replies submitted by the applicants to the charge-sheets, the impugned orders of recovery were issued against them. Since only minor penalties of recovery were imposed against the applicants, after duly affording them an opportunity to have his say by filing representations against the minor penalty charge sheets, we are of the considered opinion that the respondents have duly complied with requirement of the principle of natural justice.
15. The contention of the applicant that since he had denied the charges an enquiry was must as the charges were based on facts, it is seen that the charges in all these cases were regarding violation of procedure/negligence which resulted in non-detection of fraud causing loss to the Government. The negligence/violation of procedure was to be established on the basis of records showing applicants involvement in the process prescribed for conducting the concerned activity.
16. In this view of the matter the reliance placed by the learned counsel for the applicants on the decision of Honble Supreme Court in the matters of O.K.Bhardwaj (supra) is misplaced in these OAs.
17. We also find that in none of these OAs the applicant had asked for full-fledged enquiry as envisaged under Rule 14 of the CCS(CCA)Rules. The provision of holding of an enquiry is there under Rule 16 of the CCS(CCA)Rules only in two situations : (i) when request is made by the delinquent employee for such enquiry and (ii) when holding an enquiry as per provisions of Rule 14 of the CCS(CCA)Rules is considered to be necessary by the disciplinary authority. In none of these cases the request for enquiry was made by the applicant-delinquent employee and the disciplinary authorities also did not find it necessary, looking to the charges imputed against the applicant to hold such an enquiry.
18. In regard to applicants contention that he was not provided the documents demanded by him, it is provided in Rule 77 of the Post & Telegraphs Manual Vol.III that Rule 16 of the CCS(CCA)Rules does not make it incumbent on the part of the disciplinary authority that it should give the accused official permission to inspect the relevant record provided no formal enquiry is considered necessary by the disciplinary authority. The applicant was allowed access to the record available with the respondents and after viewing it he had filed his representations. Thus, no prejudice had apparently been caused by denial of some of the documents demanded by them on account of their non-availability.
19. We find that in the matters of Union Of India Vs M.L. Khare, Writ Petition No.10471 of 2010(S) decided on 28 September, 2011 by Honble High Court of Madhya Pradesh, a similar issue had been considered and decided, relevant paragraphs of the said order read thus:
3. Respondent while working as Supervisor in SBCO, Head Post Office, Balaghat, was charge- sheeted under Rule 16 of Central Civil Services (Classification, Control & Appeal) Rules, 1965 (hereinafter referred to as 'Rules of 1965') on 18-08-2002.
4. Charges levelled against him were that while working as Supervisor with effect from 18- 02-2002 he derelicted in discharge of his duty as Supervisor as a result whereof one Shri Mahesh Padwar, Sub Post Master, Bisra Sub Office made bogus withdrawals from different saving Bank, Recurring Deposit, Term Deposit and Monthly Income Scheme accounts and did not account for the same in respective accounts, resulting in bogus withdrawals and loss to the Government to the tune of Rs. 29,21,222/- . It was alleged that charge sheeted employee failed to ensure proper voucher checking of SB/RD/TD/MIS etc. of Bisra Sub Post Office as required under the S.B. Control Procedure and thereby violated the instructions contained in Government of India Ministry of Communication, Department of Posts, No. 113-1/2002 SB, dated 05- 05-2003 and SB Order No. 33/2002 dated 13- 12-2002, violating Rules 3(1)(ii) and 3 (2) (I) of CCS (conduct) Rules, 1964.
5. Denial of charges led to initiation of departmental proceedings which culminated into the order dated 20- 06-2008; whereby, the punishment of recovery of Rs. 1,00,000/- from the pay of the respondent at the rate of Rs. 3,000/- per month was ordered.
6. Aggrieved, the respondent filed O.A. No. 191 of 2009 before the Tribunal.
7. The Tribunal while upholding the finding of misconduct recorded by the disciplinary authority, however, interfered with the quantum of punishment and accordingly quashed the impugned order of recovery. The Tribunal observed that the respondent- management failed to establish a direct link between the defaults by the applicant and the loss suffered by the Government. Tribunal relied upon the paragraph 106 and 107 of the Post Office Manual Volume III.
8. The Tribunal held in paragraph 14 :
"14. Usually, the disciplinary authority is the best judge in respect of punishment to be awarded to any Government servant. But if there is any basic legal shortcoming in the view taken by the disciplinary authority, the court can certainly interfere in the matter. A perusal of the disciplinary authority's order and the order of the appellate authority clearly shows that they have established he default of the applicant in not complying with various rules and in not discharging his duties in a proper manner. At the same time, they have failed to establish a direct link between the defaults of the applicant and the loss suffered by the Government. Looking to Rules 106 and 107 of the Post Office Manual, Volume III, quoted above, and also the authorities cited by the learned counsel for the applicant, I consider it proper to set aside the punishment awarded to the applicant, because in this case it has not been established that the applicant was directly responsible for the loss suffered by the Government, without disturbing the finding that the applicant was guilty of the charges levelled against him. In other words, upholding the orders of the disciplinary authority as well as the appellate authority except for the actual punishment awarded to the applicant, the matter of punishment to be awarded to the applicant is remitted back to the appellate authority who shall re-decide the issue within six months of the receipt of this order after giving a proper opportunity of hearing to the applicant. As per rules, the following minor penalties can be imposed on a Government servant :
(i) censure;
(ii)withholding of his promotion;
(iii) recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders;
(iv)withholding of increments of pay.
The disciplinary authority, in this case, imposed penalty no. (iii) which was not justified in the facts of the case as the same is legally untenable . Therefore, the appellate authority shall be free to consider the facts of the case, and after hearing the applicant, may impose any one of the above minor penalties on the applicant, except penalty no. (iii) . As a logical corollary, it is also ordered that the Respondents shall refund the amount already recovered from the applicant, if any . The amount already recovered should be refunded to the applicant within two months of the receipt of this order and the matter of punishment should be re-decide d by the appellate authority, after hearing the applicant, within six months of the receipt of this order."
9. It is the said order which is being challenged in this petition.
10. It is urged that the Tribunal fell into patent error in exonerating the respondent from recovery of pecuniary loss caused to the Government due to negligence. It is contended that it was beyond the powers of the Tribunal to have set aside the recovery more particularly when the charges of misconduct were proved and upheld by the Tribunal. It is contended that Tribunal misconstrued not only Rule 11 (iii) of the Rules of 1965 but also paragraph 106 and 107 of the Post Office Manual Vol. III. It is contended that upon true construction of the provision it would borne out therefrom that it is not a condition precedent for recovery of loss to the revenue that a person at whose instance the loss is incurred has personally gained from it. It is urged that the Tribunal has wrongly interfered with the punishment.
11. The respondent on his turn supports the order passed by the Tribunal.
12. The question for consideration is whether when the charge of negligence resulting in pecuniary loss to the Government having been proved in a departmental enquiry and upheld by the Tribunal, the Tribunal was justified in interfering with the punishment of recovery.
13. Trite it is that punishment is the discretion of the disciplinary authority and the Court will not substitute its own judgment [Administrator, Union Territory of Dadar and Nagar Haveli v. Gulabhia M. Lad : (2010) 5 SCC 775, paragraph 14, State Bank of Mysore and others v. M. C. Krishnappa :(2011) 7 SCC 325, Paragraph 8], unless the punishment shocks the conscience (Union of India v. Dwarka Prasad Tiwari : (2006) 10 SCC 388 Paragraph 10 & 15). Even in such cases it is held that, it should ordinarily remit the matter to disciplinary authority for reconsideration of punishment.
14. Rule 11 of Rules of 1965 lays down different penalties which can be imposed on a Central Govt. Servant found guilty of charges either under Rule 14 or 16, as the case may be. Clauses (i) and (iv) of Rule 11 lay down minor penalties. Clauses (v) to (ix) lay down major penalties. An exception vide explanation is carved out, as the instances given thereunder are not construed as penalties.
15. We are concerned with clause (iii) of Rule 11 which stipulates that on found guilty of the charges and for good and sufficient reasons penalty of "recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders" can be imposed.
16. In other words if due to negligence of Govt. servant there is pecuniary loss caused to the Government, the discretion lies with the disciplinary authority to recover from the pay of Government servant either the whole or part of such loss. Personal gain of a Government servant is not the condition precedent for effecting a recovery once it is proved that the loss is attributed to the negligence.
17. In the case at hand the loss to the Government ascertained is Rs. 29,21,222/- . The respondent though is not held guilty of charge of embezzlement but is found negligent in supervising which led to siphoning of colossis amount of money by a co-accused. In other words had the respondent be good at supervision, the attempt by co-employee in retrieving the money could have been checked. The Tribunal in our considered opinion is not justified in holding that unless there is personal gain mere negligence and the loss occasioned thereon will not be sufficient a ground to effect recovery of whole or part of such loss.
18. We accordingly set aside the order passed by the Tribunal and dismiss the Original Application filed by the respondent herein.
19. The petition is allowed to the extent above. No costs.
20. In the aforementioned judgment the Honble High Court has held that in terms of clause (iii) of Rule 11 which stipulates that on found guilty of the charges and for good and sufficient reasons penalty of "recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders" can be imposed, and further that if due to negligence of Government servant there is pecuniary loss caused to the Government, the discretion lies with the disciplinary authority to recover from the pay of Government servant either the whole or part of such loss. Personal gain of a Government servant is not the condition precedent for effecting a recovery once it is proved that the loss is attributed to the negligence.
21. Thus, having gone through the aforesaid judgment of the Honble High Court of Madhya Pradesh we are of the considered view that all the earlier judgments decided by this Bench and other Benches of the Tribunal, as relied upon by the learned counsel for the applicant, and referred to above, will not help the applicant, and these cases are fully covered by the aforesaid decision of the Honble High Court in the matters of M.L.Khare (supra). As regards the reliance on other matters, the same are misplaced keeping in view the facts of the present cases.
22. It is the admitted position in OA No.213/12 that the charge of misconduct of gross negligence in applicants work, which facilitated commission of fraud by others, has been duly established against the applicant. The applicant was posted almost continuously for the period from 28.6.2004 to 6.12.2004 as per the charge sheet and therefore he was responsible for pursuing the matter on non-receipt of the required certificate at the end of September, 2004. Therefore, the respondents are not at fault in imposing the penalty of recovery of Rs.17,488/- from the applicant. However, in OA 214/12, according to the charge sheet, the applicant was posted to do the concerned job on certain intermittent dates only. In the month of September, 2004 he was posted for only one day i.e. on 15.9.2004. Thereafter, upto 24.5.2005 the applicant was not posted for this work. Therefore, holding him guilty for not keeping watch on receipt of certificate about posting of annual interest and submitting such certificate for the year 2003-2004 by the end of September, 2004 to concerned Head Post Office is not justified. The certificate ending September 2004 was to be received after 30th September, 2004. Since applicant was not posted for this work for any day after 15.9.2004, during financial year 2004-2005, he cannot be held guilty for the charge imputed against him in the show cause notice dated 9.3.2011. Therefore the impugned orders of disciplinary as well as appellate authorities passed in OA No.214/2012 are not sustainable and are quashed. In OA No.215/2012 also it is noticed that while the applicant was posted to do this work from 28.6.2004 to 6.12.2004 almost continuously and was therefore responsible for pursuing the matter on non-receipt of the certificate ending September, 2004, the same cannot be said about certificate ending September, 2005, as applicant was posted for this work in that financial year only from 18.7.2005 to 31.7.2005 and 8.8.2005 to 19.8.2005, as per the charge sheet. Thus, the applicant cannot be held responsible for not pursuing the matter on non-receipt of the certificate ending September, 2005, as imputed in the charge sheet. In view of this, the impugned orders of disciplinary as well as appellate authorities passed in OAs Nos.214 & 215/2012 are quashed and set aside. The respondents would however be at liberty to proceed against the applicant in the matters of OAs Nos.214 & 215/2012, if they are so advised, based on some other additional facts which are not mentioned in the charge sheets, by conducting a proper enquiry in the matter. Since sufficient time has already expired, the respondents, if they decide to conduct fresh enquiry, the same should be completed within a period of six months from the date of communication of this order. The respondents are directed to refund the amount already recovered on account of penalties imposed in OAs Nos.214 & 215/2012, to the applicant within a period of one month from the date of communication of this order.
23. In the result OA No.213/2015 is dismissed and OAs Nos.214 and 215 of 2012 are allowed with the directions as contained in the preceding paragraph. No costs.
(U. Sarathchandran) (G.P. Singhal) Judicial Member Administrative Member rkv 15 Subject : Recovery for negligence OAs Nos.213-215/2012 Page 15 of 15