Sushil Kumar Bajpai vs Union Of India And Others
2023 Latest Caselaw 7440 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 
Case :- WRIT - A No. - 38165 of 2011
 
Petitioner :- Sushil Kumar Bajpai
 
Respondent :- Union Of India And Others
 
Counsel for Petitioner :- Satya Prakash Pandey,Rajeev Trivedi,Shashi Kant Shukla
 
Counsel for Respondent :- A.S.G.I.,C.S.C(2011/33987),Praveen Shukla,Saumitra Singh
 

 
Hon'ble Rajiv Joshi,J.

Heard Shri Shashi Kant Shukla, learned Counsel for the petitioner and Shri Saumitra Singh, Senior Panel Counsel for Union of India/respondents.

The instant writ petition under Article 226 of the Constitution of India has been filed against the impugned order dated 06.05.2011 passed by the respondent no.4, Chief Post Master, Kanpur, District Kanpur Nagar whereby a sum of Rs.7,57,500/- has been directed to be recovered from the petitioner as an arrears of land revenue in exercise of power under Public Accountant Default Act, 1850.

It reflects from the record that the petitioner joined on the post of Postal Assistant at Head Post Office, Banda on 24.09.1983. Subsequently, he was transferred to Kanpur on the same post. On 17.03.2003 while he was performing his duties as Postal Assistant in the office of Treasurer, a loss of Rs.8,00,000/- occurred in the department due to the irresponsibility committed by one Shailendra Kumar Dixit, who was working at that time as Postal Assistant N.S.C., Discharge Counter, Head Post Office, Kanpur Nagar.

A first information report was lodged against unknown persons on 17.03.2003, thereafter, the departmental proceeding was initiated against the petitioner and he was served with a charge-sheet on 18.07.2003 issued by the respondent no.4 with the allegation that the petitioner has given a cash advance of Rs.8,01,000/- to Shailendra Kumar Dixit, Postal Assistant N.S.C. Discharge Counter, Kanpur Nagar without taking any initial of the Assistant Post Master namely Sri S.S. Trivedi and as such he acted in contravention of Rule 3 (I) (ii) of CCS (Conduct) Rules, 1964.

The petitioner submitted his reply on 13.08.2003 denying the charges levelled against him and further stated that the amount in dispute was given to Shailendra Kumar Dixit with the consent of Assistant Post Master, Shri S.S. Trivedi, who made his initial on the cash register certifying therein that the amount has been received by Shailenra Kumar Dixit and as such two charges made against the petitioner are frivolous and are liable to be dropped.

Subsequently, the statement of Shri S.S. Trivedi, Assistant Post Master was recorded by the inquiry officer and the disciplinary authority, respondent no.4 passed the order dated 15.11.2003 whereby imposed recovery of Rs.88,032/- against the petitioner with immediate effect in 42 equal installments @ Rs.2,096/- per month from his salary.

Being aggrieved by order dated 15.11.2003, the petitioner filed an appeal before the respondent no.3, Director Postal Services, Kanpur Region, Kanpur on 29.11.2003, which was not decided by the appellate authority despite several reminders given by the petitioner. Ultimately, the petitioner filed an Original Application being Original Application No.92 of 2004 (S.K. Bajpai Vs. Union of India and others) against the order dated 15.11.2003 before the Central Administrative Tribunal, and the Central Administrative Tribunal vide order dated 09.02.2004 stayed the operation of the said order till disposal of the appeal.

The respondent no.3 during pendency of the Original Application before the Central Administrative Tribunal had allowed the appeal filed by the petitioner vide order dated 18/29.06.2004 by setting aside the recovery of Rs.88,032/- with the direction that a fresh charge-sheet be issued by the disciplinary authority against the petitioner.

The disciplinary authority neither issued any charge-sheet nor initiated disciplinary proceeding as per Rule 16 of C.C.S.(C.A.A.) Rules, 1965 (hereinafter referred as "Rules of 1965") in pursuance of the direction of appellate authority dated 18/29.06.2004.

Subsequently, the respondent no.4 issued the order dated 09.04.2005 directing recovery of Rs.8,00,000/- from the petitioner as arrears of land revenue. The respondent no.4 has also passed two separate orders dated 08.04.2005 and 8/9.04.2005 against Shailendra Kumar Dixit and Shri S.S. Trivedi for recovery of Rs.8,00,000/- each meaning thereby the respondent no.4 had issued recovery of Rs.24,00,000 against the petitioner and two other persons working in the Post Office.

The petitioner was again compelled to file the Original Application being Original Application No.511 of 2005 challenging the order dated 09.04.2005 before the Central Administrative Tribunal and the Central Administrative Tribunal while entertaining the Original Application vide order dated 04.05.2005 stayed the recovery proceeding against the petitioner. Thereafter, a fresh charge-sheet was issued by the disciplinary authority against the petitioner under Rule 14 of Rules of 1965 with regard to the earlier charges on 07.05.2005, which was replied by the petitioner on the same day i.e 07.05.2005 denying the entire charges.

The inquiry officer was appointed, who submitted his report on 26.05.2008 with the finding that the charges levelled against the petitioner were not proved. The disciplinary authority i.e. respondent no.4 did not agree with the conclusion of inquiry officer, issued a letter dated 09.06.2008 regarding disagreement with the inquiry report and invited representation from the petitioner.

In reply thereto, the petitioner filed his representation dated 12.07.2008, the respondent no.4 without considering the representation as well as finding recorded by the inquiry officer passed the order dated 19.07.2008 imposing the recovery of Rs.2,50,000/- from the salary of the petitioner in 100 equal monthly installments.

The petitioner aggrieved by the order dated 19.07.2008, filed an appeal under Rule 23 of Rules of 1965 before the respondent no.3, which was rejected vide order dated 20.11.2008 affirming the punishment order dated 19.07.2008.

Being aggrieved by the order dated 20.11.2008 the petitioner filed Original Application No.1314 of 2008 (Sushil Kumar Bajpai Vs. Union of India and others) before the Central Administrative Tribunal for quashing the order dated 19.07.2008 and 20.11.2008 passed by the respondent nos.4 & 3 respectively, which was disposed of finally vide order dated 23.12.2008 setting aside the order dated 20.11.2008 passed by the respondent no.3 and the petitioner was directed to file complete copy of the Original Application with all annexures and additional appeal, the respondent no.3 was also directed to decide the the appeal by a reasoned and speaking order in accordance with land and relevant rules on the subject and stayed the recovery proceeding against the petitioner till disposal of the appeal.

Thereafter, the appellate authority vide order dated 23.03.2009 modified the punishment of recovery of Rs.2,50,000/- as imposed vide order dated 19.07.2008 to Rs.1,50,000/-. The petitioner again challenged the said order dated 23.03.2009 passed by the appellate authority vide Original Application No.474 of 2009 before the Central Administrative Tribunal, which was finally disposed of vide order dated 15.05.2009 setting aside the order dated 23.03.2009 passed by the appellate authority and remitted the matter back to reconsider the entire case in accordance with law and pass a reasoned and speaking order within a period of three months and further stayed the recovery against the petitioner during the pendency of the appeal.

The appellate authority, thereafter, rejected the appeal vide order dated 14.07.2009 and affirmed the order dated 19.07.2008 directing recovery of Rs.1, 50,000/- as the petitioner was held responsible for the loss to the extent of Rs.1,50,000/- and the said amount is being recovered from the salary of the petitioner.

The petitioner again filed Original Application No.881 of 2009 before the Central Administrative Tribunal challenging the order dated 19.07.2008 as well as the order dated 14.07.2009 passed by the appellate/disciplinary authority, which is pending before the Tribunal.

From the record, it is apparent that the amount, which was directed to be recovered from the salary of the petitioner to the extent of Rs.1,50,000/- has been recovered and the Original Application No.511 of 2005 was dismissed as withdrawn vide order dated 22.12.2010 and during pendency of the Original Application No.881 of 2009 the impugned order dated 06.05.2011 has been passed while exercising the power under the provisions of Section 2 & 4 of Public Accountant Default Act, 1850 (Act No.12 of 1850) whereby an amount of Rs.7,57,500/- has been directed to be recovered from the petitioner as an arrears of land revenue after deducting the amount of Rs.1,50,000/- which has already been recovered from the total loss to the extent of Rs.8,00,000/-. The order dated 06.05.2011 passed by the respondent no.4 is impugned in the writ petition.

Learned Counsel for the petitioner submits that the disciplinary proceeding against the petitioner was initiated and departmental inquiry was held in which the charges against the petitioner has not been substantiated, thereafter, the fresh inquiry has not been initiated by the department in pursuance of the order of Central Administrative Tribunal and an amount of Rs.7,57,500/- is sought to be recovered from the petitioner by the impugned order.

Learned Counsel for the petitioner further submits that the amount in question, which is directed to be recovered is not an amount and kind of security as per Section 2 of the Public Accountant Default Act, 1850 and the petitioner is neither a Official Assignee or Trustee, or as Sarbarakar, is entrusted with the receipt, custody or control of any moneys or securities for money. The impugned recovery under the Public Accountant Default Act, 1850 is absolutely illegal and the said amount cannot be recovered from the petitioner as an arrears of land revenue.

Learned Counsel for the petitioner again submits that before passing of the impugned order no opportunity of any hearing has been afforded to the petitioner.

In support of his argument learned Counsel for the petitioner placed reliance upon the division Bench judgement of this Court in the case of Smt. Madhubala Bharti Vs. State of U.P. and others passed in Writ Petition No.40574 of 2001 and Girija Dayal Srivastava Vs. State of U.P. reported in 1987 UPLBEC 1121. The relevant portion of the judgement in the case of Smt. Madhubala Bharti (supra) is quoted as under:-

"The another factor which is to be considered by this Court that whether the recovery of loss caused by a public servant to the government can be recovered as arrears of land revenue. In case of Girja Dayal Srivastava (Supra) the Division Bench of this Court has clearly held that process of recovery arrears of land revenue is an exception to the oral process. The right of recovery as arrears of land revenue must be shown to be permitted by statutory provision including the statutory rules in respect of government servant. In respect of the government servant, loss caused to the government may be recovered from the salary under section 40 of the Civil Services Classification (Appeal) Rules, 1930 as applicable in U.P. But under Public Account Default Act, 1850 it cannot be recovered as arrears of land revenue. In case of Titoo Singh Vs. District Magistrate,( Supra) the provision of Sections 173 A and 21 was being considered and the Division Bench of this Court has held that it cannot be recovered as arrears of land revenue. It can adopt other modes of recovery.

In view of the aforesaid fact, we are satisfied that the recovery cannot be made against the petitioner unless and until a liability to that effect of the loss of government amount is fixed upon the petitioner. "

Learned Counsel for the Union of India on the other hand states that the impugned order has rightly been passed but he failed to substantiate the fact as to why fresh disciplinary proceeding has not been initiated as per direction of the Central Administrative Tribunal.

After considering the rival submissions made by both side as well as perusing the record of the case, it is apparent that no fresh disciplinary proceeding was initiated as per direction of Central Administrative Tribunal and the petitioner is not a Public Accountant as defined in Section 2 of the Public Accountant Default Act, 1850 and as per Division Bench judgment of this Court in the case of Smt. Madhubala Bharti (supra) the proceeding of recovery cannot be initiated against the petitioner unless and until a liability to that effect of the loss of government amount is fixed upon him and even the Public Accountant Default Act, 1850 (Act No.12 of 1850) has been repealed by the Central Government on 02.09.2019 through a bill called as Repealing and Amending Bill, 2019 as the said Act has become obsolete.

In view of the aforesaid, this Court is of the opinion that the recovery cannot be made against the petitioner unless and until a liability to that effect of the loss of government amount is fixed upon the petitioner. Therefore, the impugned order dated 06.05.2011 passed by the respondent no.4, Chief Post Master, Kanpur, District Kanpur Nagar is quashed.

The Writ Petition is allowed. No order as to cost.

Order Date:-15.03.2023

S.P.