The Union Of India & 2 Ors vs Sanjay S/O Motiramji Chandan & ...
2016 Latest Caselaw 5069 Bom

    WP 1864/03                                               1                         Judgment

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                        NAGPUR BENCH, NAGPUR.




                                                                                           
                             WRIT PETITION No. 1864/2003
    1.     The Union of India,




                                                                   
           Through G.M., Central Railways,
           C.S.T.M.

    2.     The Divisional Railway Manager,
           Central Railway, Bhusaval.




                                                                  
    3.     The Divisional Railway Manager,
           Central Railway, Bhopal.                                              PETITIONERS
                                           .....VERSUS.....

    1.     Ratnaprabha wd/o Motiramji Chandan.                   (DELETED)




                                                    
    2.     Sanjay S/o. Motiramji Chandan,
           aged about 32 yrs., Occup.Business.
                               
    3.     Pravin S/o. Motiramji Chandan,
           aged about 32 yrs., Occup.Lecturer.
                              
    All R/o 86, Dwarka Nagari, 'Shraddha Nivas',
    Akola.                                                                           RESPONDENTS


                          Shri R.G. Agrawal, counsel for the petitioners.
      

                          Shri S.A. Marathe, counsel for the respondents.
   



                                            CORAM :SMT. VASANTI  A  NAIK AND
                                                         KUM. INDIRA  JAIN,   JJ.      

DATE : 30 TH AUGUST, 2016.

ORAL JUDGMENT (PER : SMT.VASANTI A NAIK, J.)

By this writ petition, the petitioners, the Union of India and

others, have challenged the judgment of the Central Administrative

Tribunal, Nagpur, dated 30.01.2003, allowing an original application

filed by the employee and setting aside the order of the petitioners of

forfeiting a sum of Rs.92,349/-, towards the loss caused to the petitioners

due to the negligence on the part of the employee.

WP 1864/03 2 Judgment

2. The respondents are the legal heirs of Motiram, who was

working as the Chief Works Inspector in the Stores of the petitioners

at Bhopal from 1987 to 1989. In the year 1990, Motiram was

transferred to Bhusawal. The audit party conducted the regular

inspection in the Stores at Bhopal, where Motiram was working from

1987 to 1989 and found that goods worth several lakhs of rupees were

not found in the Stores. An enquiry was conducted in the matter

pertaining to the removal of the goods from the Stores and the liability

of Motiram, who was working as the Chief Works Inspector in the

Stores, was fixed at Rs.92,349/-. The order fixing the liability on

Motiram to pay the said amount was challenged by Motiram, inter

alia, with some other orders in Original Application No.339 of 1995.

The matter was remanded to the petitioners for issuing a fresh show

cause notice after holding that a full-fledged enquiry in the matter may

not be necessary. Since the same liability was re-fixed on Motiram, he

filed Original Application No.100 of 1998. Again, the matter was

remanded and after the liability was fastened on Motiram, a third

original application bearing Original Application No.2206 of 2000,

challenging the recovery of Rs.92,349/-, was filed. While partly

allowing the said original application, the Tribunal held that there was

a violation of principles of natural justice as certain documents were

not supplied to Motiram. Taking a lenient view in the matter, the

WP 1864/03 3 Judgment

Tribunal directed Motiram to make one more representation to the

petitioners and directed the petitioners to supply the copies of the

necessary documents to Motiram within two months. The Tribunal

directed the petitioners to take a suitable decision in the matter. The

representation made by Motiram was again rejected by the petitioners by

the last order dated 21.08.2002 that was challenged by Motiram in the

present original application. The Central Administrative Tribunal

allowed the original application filed by Motiram and set aside the order

seeking a recovery of Rs.92,349/- from him. The said order is challenged

by the petitioners in the instant petition.

3. Shri Agrawal, the learned counsel for the petitioners,

submitted that the Tribunal was not justified in setting aside the order

dated 21.08.2002 on the ground that the liability-responsibility could not

have been fixed on the employees on percentage basis. It is submitted

that though Motiram was the Chief Works Inspector of the Stores, he was

asked to pay only a sum of Rs.92,349/- though the loss caused to the

petitioners was much more. It is submitted that the responsibility was

fixed on several officers and the liability of Motiram is reduced, in view of

the fixing of the responsibility on percentage basis. It is stated that since

more than fourteen years had lapsed from the date of handing over and

taking over of the charge by Motiram at Bhopal and Bhusawal, the said

document was not tendered to Motiram, in view of its unavailability. It is

WP 1864/03 4 Judgment

stated that the said document could not have thrown any light on the

merits of the matter and the non supply of the said document to Motiram

could not have been a reason for setting aside the order imposing the

penalty.

4. Shri Marathe, the learned counsel for the respondents,

has supported the order of the Tribunal. It is submitted that a full-fledged

departmental enquiry was necessary before seeking a recovery of the

amount of Rs.92,349/- as per the pension rules and the departmental

rules. It is submitted that a proper show cause notice was not

served on Motiram and he was not aware about the extent of the loss

caused to the petitioners due to the negligence on his part. It is stated

that the stock verification sheets would not disclose the loss

that is caused to the petitioners due to Motiram's negligence. It is stated

that the liability could not have been fastened on the employees on

percentage basis. It is further stated that some of the documents,

including the document pertaining to taking and handing over of

the charge was not supplied to Motiram. The learned counsel relied on

the judgment of the Hon'ble Supreme Court reported in (1999) 9 SCC

479 (State of Maharashtra Versus Keshav Ramchandra Pangare &

another) to substantiate his submission that a full-fledged enquiry was

necessary.

WP 1864/03 5 Judgment

5. On hearing the learned counsel for the parties, we find that

the Tribunal was not justified in setting aside the order of imposition of

minor penalty of recovery of Rs.92,349/- on Motiram. The employee has

approached the Central Administrative Tribunal on four occasions only in

respect of this recovery. We do not find that the show cause notice is

cryptic. In fact, we find that along with the show cause notice, Motiram

was supplied with the details of the stock-sheets, the enquiry report and

the statement showing as to how an amount of Rs.92,349/- was

recoverable from him. It would not be for this Court or for that matter

even for the Central Administrative Tribunal to sit in appeal over the

enquiry report. It would also not be permissible for the Tribunal or this

Court to verify the stock sheets and re-fix the liability on Motiram. We do

not find that a full-fledged enquiry was necessary in the matter. Even in

the first and the second original applications filed by Motiram, the

Tribunal recorded a clear finding that a full-fledged departmental enquiry

was not necessary and the amount could be recovered after serving a

proper show cause notice on Motiram. Motiram has never challenged the

correctness or otherwise of the said orders holding that a full-fledged

departmental enquiry was not necessary. The observation of the Tribunal

that the petitioners could not have fixed the responsibility-liability on

more than one employee on percentage basis, is incorrect. There is

nothing placed on record before the Tribunal or even in this Court to

point out that liability cannot be fixed on more than one employee on

WP 1864/03 6 Judgment

percentage basis. In fact, we have always found that when loss is caused

to an employer and more than one employee is involved in the

misconduct and/or negligence, the liability is fastened on them on

percentage basis. Without recording any reason for holding so, the

Tribunal has set aside the order imposing the penalty by observing that

the penalty could not have been fastened on percentage basis. The

Tribunal could not have set aside the order on the ground that the

documents were not supplied to Motiram. The observation of the

Tribunal that since the documents pertaining to the handing over and

taking over of the charge at Bhopal and Bhusawal were not supplied to

Motiram, the order would be vitiated, is liable to be rejected. We do not

feel so. The order imposing penalty cannot be vitiated merely because

the documents pertaining the handing over and taking over of the charge

were not supplied to Motiram. The said document cannot throw any light

on the merits of the matter, pertaining to the imposition of the penalty.

Also, the petitioners could not supply the said document to Motiram only

in view of the lapse of fourteen years from the date of the enquiry.

Motiram had not pointed out before the Tribunal as to what prejudice

would be caused to Motiram due to the non-supply of the documents.

Also, Motiram had not made a grievance in the first original application

that the said document was not supplied. Had such a grievance been

made, the Tribunal would have directed the petitioners to supply the said

document to the employee and it would have been easy to the petitioners,

WP 1864/03 7 Judgment

to so supply. We find that both the reasons recorded by the Tribunal for

setting aside the order imposing the penalty are improper and the

impugned order is vitiated on the said count. The judgment reported in

(1999) 9 SCC 479 (State of Maharashtra Versus Keshav Ramchandra

Pangare & another) and relied on by the counsel for the respondents

cannot be made applicable to the facts of this case.

6. Hence, for the reasons aforesaid, the writ petition is allowed.

The impugned order is quashed and set aside. The original application

filed by Motiram is dismissed. Since it is informed that in terms of the

interim order dated 10.01.2005, the respondent nos.2 and 3, the legal

heirs of Motiram, were permitted to withdraw the sum of Rs.2,05,017/-

deposited by the petitioners in this Court, the learned counsel for the

respondents states that an amount of Rs.2,05,017/- would be deposited in

this Court within three months. If the amount is so deposited, the

petitioners are entitled to withdraw the same towards full and final

settlement.

Rule is made absolute in the aforesaid terms with no order as

to costs.

                  JUDGE                                           JUDGE



    APTE





     WP 1864/03                                     8                          Judgment

                                        CERTIFICATE




                                                                                  

I certify that this Judgment uploaded is a true and correct copy of original signed Judgment.

Uploaded by: Rohit D. Apte. Uploaded on :01.09.2016.