P L GUPTA v. UNION OF INDIA

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the iron chest. Apart from the same the other funds namely cooperative dues Rs. 1,09,389/- tsunami relief Rs. 1270/-, fatality bond Rs. 5063/- and contributory fund of Union Rs. 3453/- have also stolen by robbers. Applicant has been issued a charge-sheet against the aforesaid loss caused to the Post Office. In response to chargesheet, applicant submitted his reply dated 17.11.2007 denied the charges leveled against the applicant. Respondent No. 4 by order dated 30.1.2008 imposed the penalty of recovery of Rs. 1,00,000/- against the applicant out of which a sum of Rs. 2000/- was to be deducted from the salary of the applicant and rest of the amount was to be recovered from the DCRG. Aggrieved with the order of respondent No. 4, the applicant preferred an appeal before the respondent No. 3, which too was rejected and the punishment awarded by the Disciplinary Authority was upheld with an observation that since the applicant has been superannuated and Rs. 16,000/- has been recovered from his pay so far, the respondent No. 2 further directed to recover a sum of Rs. 86,000/- from the arrear of pay for the period 1.1.2006 and 31.8.2008 of the applicant. Against the order in appeal, applicant preferred an revision petition dated 19.11.2008.

3. The charge against the applicant is that applicant has failed to discharge the duties of daily calculation and also did not prepare the ledger book during this period. On 16.07.2005 twelve bags received from Sub Post Offices could not be opened and the applicant could not appropriately assess the details of liability payment and against the due payment of Rs. 4,45,000/- a withdrawal of Rs.8,00,000/- has been carried out from the State Bank of India, however before closing of the Saving Bank counters some of the payment could have been disposed of. As a result of which after closure of the counters the total currency in the Head Post Office has crossed the maximum limit of Rs. 7,00,000/-. The charge-sheet also mentioned that applicant on 16.7.2005 did not maintain the cashier ledger book and also did not enter in the same in the error book and also did not calculate the total balance. on 16/17.7.2005 a robbery has occurred in the Head Post Office, Mirzapur and department has suffered with a loss occurred due to carelessness of the applicant.

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4. I have heard Shri Ashish Srivastava, learned counsel for the applicant and Shri R.K. Srivastava, learned counsel for the respondents and perused the records.

5. Learned counsel for the applicant contended that since the charges against the applicant were serious in nature and also requires a proper investigation hence the applicant also requested to the departmental authorities to give the applicant an opportunity by conducting an open enquiry. He also contended that applicant first time deputed the charge of Cashier, hence he is inexperienced in handling of cash and maintaining the accounts of Head Post Office. Learned counsel further contended that disciplinary authority has imposed penalty upon the applicant in a most technical manner without having care of the fact that the applicant has discharged duties as a cashier only for two days. He submitted that it is a settled law that the recovery proceeding can be initiated only in the cases where it has been established the misappropriation or the employee has deliberately put the Government into loss for his vested interest. It is stated that the applicant is not directly responsible for causing any pecuniary loss to the Government and, therefore, he could not be held responsible for the loss sustained by the Government. Learned counsel for the applicant has relied upon the following judgments:-

(i) O.K. Bhardwaj Vs. Union of India and others reported in (2001) 9 Supreme Court Cases 180.

(ii) OA 1068/12 Prem Nath Pandey Vs. UOI & ors decided on 17.1.2014 by CAT Allahabad Bench.

6. Learned counsel for the respondents vehemently contended that it has wrongly been stated by the applicant that he was first time deputed the charge of Cashier though he was a very experienced and senior official and he had performed the duties of Treasurer Mirzapur HO from 2.12.1986 to 15.2.1988. It has been contended by the respondents that if the applicant had not drawn a sum of Rs. 8,00,000/- unnecessarily, the same could not be robbed on 16/17.7.2005. Learned counsel further contended that revision of the applicant has been rejected by the revisionary authority by order dated 23.07.2010, hence it is duty of the applicant to amend his OA by challenging the order of the revisionary authority.

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7. I have considered the rival submissions advanced by the learned counsel for the parties and gone through the judgments relied upon by the counsel for the applicant.

8. In the case of O.K. Bhardwaj (supra), the Hon'ble Supreme Court has held that:-

"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".

9. It is worth mentioning here that judgment and order passed in OA No. 1068 of 2012 Prem Nath Pandey (supra) as relied upon by the learned counsel for the applicant had been challenged before the Hon'ble High Court through Writ A No. 37811 of 2014, which was allowed on 06.10.2015 and order passed by the Tribunal was set aside. The judgment and order passed by Hon'ble High Court in the aforesaid writ petition is quoted as below:-

"Heard Shri Praveen Shukla, counsel for the petitioner and Shri Vidhu Prakash Pandey, Advocate on behalf of respondent no. 1. Senior Superintendent of Post Offices, Allahabad Division, Allahabad has filed this writ petition against the order of the Central Administrative Tribunal dated 17.01.2014 passed in Original Application No. 1068 of 2012.

Facts leading to the present petition are as follows :

Respondent no. 1 (Prem Nath Pandey) at the relevant time was serving at Handia Sub Post Office, Allahabad as Joint Custodian. He admittedly deposited a sum of Rs.3,20,000/- along with some bonds in the Treasury of the Tehsil. The Treasury which was in shape of iron chest was guarded by the U.P. Police. A theft occurred in the night of 20/21-01- 2010. The cash chest was broken open by the miscreants and the cash was stolen.

The applicant (respondent no. 1) was charged under Rule 16 of the CCS (CCA) Rules, 1965 for recovery of the loss to the postal department because of his negligence which is a minor penalty under the relevant Rules.

After considering the explanation of respondent no. 1 minor penalty under Rule 16 was imposed vide order dated 29.0.2012.

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Not being satisfied, respondent no. 1 filed an appeal which was also dismissed vide order dated 04.07.2012. The respondent no. 2, therefore, approached the Tribunal by means of Original Application, referred to above, which has been allowed and it has been held that recovery of Rs. 1,06,667/- from the applicant was not justified. The department has filed this petition against the said order of the Central Administrative Tribunal.

We have examined the records of the present petition. From the records it is established beyond doubt that the cash holding limit for the post office concerned was prescribed as Rs.30,000/- and it was the responsibility of the respondent no. 1 while working as Joint Custodian to ensure that cash up to Rs. 30,000/- alone was kept in the Treasury. It is not in dispute that because of negligence of the respondent no. 1 of not adhering to the maximum limit so prescribed, he had put Rs. 3,20,000/- in the Treasury chest of the post office on the fateful day. Because of this negligence, loss of Rs.3,20,000/- had been caused to the post office. The respondent no. 1 was admittedly the Joint Custodian and keeping of the excess cash in the Treasury chest was directly attributable to the respondent no. 1 and others. Absolutely no discrepancy in the procedure adopted while conducting the departmental enquiry, in the facts of the case, could be pointed out.

Relevant CCS (CCA) Rules, 1965 dealing with imposition of penalty reads as follows :

"(12) Imposition of the penalty of recovery---

(a) General conditions - In the case of proceedings relating to recovery of pecuniary losses caused to the Government by negligence or breach of orders by a Government servant, the penalty of recovery can be imposed only when it is established that the Government servant was responsible for a particular act or acts of negligence or breach of orders or rules and that such negligence or breach caused the loss."

The Tribunal under the order impugned has recorded that the negligence on the part of respondent no.1 of not adhering to the cash holding limits prescribed for various offices to minimize the losses in such eventualities cannot be ruled out. Meaning thereby the respondent no. 1 has been held the guilty of negligence. The Tribunal has however proceeded to interfere with the recovery only because of the next sentence added after return to the guilty of negligence as quoted herein below :

"This impacts the "direct responsibility" of the applicant for the loss to government caused in this incident. Even if the applicant had observed all rules and procedures the crime of theft could not have been prevented by him though the loss could have been minimized. To that extent the amount of excessive loss is attributable to the petitioner's negligence. It may be noted that the cash holding limits are prescribed for various offices mainly to minimize the possibility of large losses in such eventualities. Hence, the petitioner's negligence cannot also be ignored in this case. However, the mindset of the disciplinary authority to recover a defined fraction of loss from the petitioner, cannot be held justified as punishment in view of the nature of his negligence. It is noted here that the department has not

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awarded any other penalty besides the recovery of the one third of the loss from the applicant.

It is noticed that there is no violation in spirit of Rule 27(2) of the CCS (CCA) Rules, 1965 in this case."

We, in the facts of the case, are not able to appreciate as to how the Tribunal could interfere with the apportionment of the loss amongst the three persons who were responsible for the negligence during departmental proceedings. Absolutely no reasons have been recorded for interfering with the fraction of the loss which was sought to be recovered from the respondent no. 1.

In our opinion, the petitioner (the department) has been more than fair and just in equally distributing the recovery of the loss amongst all held responsible for the negligence.

For the reasons recorded herein above, we are of the considered opinion that the order passed by the Tribunal proceeded on mere surmises and conjunctures. The order of the Tribunal is hereby set aside.

We, however, provide that after making the recovery of the loss as aforesaid from respondent no. 1, his balance post retiral benefits be released without any delay.

Writ petition is allowed subject to the observations made herein above. Order Date :- 6.10.2015"

If such is the position when judgment and order passed by the Tribunal has been set aside, no benefit could be extended to the applicant on the basis of overruled judgment.

10. From perusal of record, it is found that in the instant case, the robbery was taken place in the Head Post Office Mirzapur on 16/17.7.2005 but the applicant was also given punishment because he has failed to maintain two days accounts of Head Post Office, Mirzapur. Applicant was given charge sheet and after considering the reply, disciplinary authority has passed the impugned order even without conducting the proper enquiry saying that in minor punishment, inquiry is not required.

11. In the case of O. K. Bhardwaj (supra), Hon'ble Supreme Court has held 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.

12 In the instant case, prior to imposition of punishment, applicant has been given charge-sheet and in pursuance of charge-sheet applicant has filed reply denying all the charges. According to the case of O.K.

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Bhardwaj (supra) opportunity was given to the applicant by issuing show cause notice. Applicant also submitted his reply to the show cause notice. Hence, there is no illegality in passing the impugned order because same has been passed in accordance with settled case law of O.K. Bhardwaj (surpa).

13. Considering the facts and circumstances, I am of the view that the present OA is liable to be dismissed and it is dismissed. No order as to costs.

(Justice Om Prakash-VII)

Member (J)

Manish/-