Bombay High Court
Bhimrao Iranna Kongalwar vs Union Of India And Ors on 19 July, 2017
Bench: Anoop V. Mohta
Writ Petition No.895/2011
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO.895 OF 2011
Bhimrao s/o Iranna Kongalwar,
Age 49 years, Occ. Postal Assistant
Parli Vaijnath, R/o Anil Sadan
Raut's Wada, Modi Nagar,
At Post Ambajogai, District Beed ... PETITIONER
VERSUS
1) Union of India,
through the Secretary to the
Government of India,
Ministry of Communication,
(Department of Posts),
New Delhi - 110 001
2) The Chief Postmaster General,
Maharashtra Circle,
G.P.O., Mumbai - 400 001
3) The Director of Postal Services,
Aurangabad Region,
Aurangabad
4) The Superintendent of Post Offices,
Beed Division,
Beed - 431 122 ... RESPONDENTS
.....
Shri Y.D. Deshmukh, Advocate holding for
Shri H.A. Joshi, Advocate for petitioner
Mrs. Dipali Jape (Ansingkar), Advocate for respondent No.1.
.....
CORAM: ANOOP V. MOHTA AND
SUNIL K. KOTWAL, JJ.
Date of reserving judgment : 6th July, 2017
Date of pronouncing judgment: 19th July 2017
::: Uploaded on - 20/07/2017 ::: Downloaded on - 22/07/2017 00:20:47 :::
Writ Petition No.895/2011
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JUDGMENT (PER SUNIL K. KOTWAL, J.) :
1. By filing this Writ Petition, the order passed by the
Central Administrative Tribunal (CAT) in Appeal No.320/2007,
dated 26/2/2010, confirming the recovery of Rs.1,08,000/- from
the petitioner, is challenged. Respondent No.1 is Union of India,
Respondent No.2 is Chief Postmaster General, Maharashtra Circle
and respondent No.3 is Director of Postal Services, Aurangabad
Region. Respondent No.4 is Superintendent of Post Offices, Beed
Division.
2. Facts leading to institution of this petition are that,
the petitioner used to work as Treasurer at Sub Post Office, Kaij,
District Beed. On 13/4/2004, at the time of closing hours of the
office, petitioner had kept cash of Rs.2,74,050/- in the office safe
at Sub Post Office, Kaij. On 15/4/2004, when the Post Office was
opened, it was found that, some unknown miscreant committed
theft of the above said cash of Rs.2,74,050/- from the safe.
Therefore, report was lodged to Police Station and Crime
No.65/2004 was registered. The suspected miscreants were
arrested. However, on 22/7/2004, the respondent No.4 issued
memo to the petitioner, proposing to take action against him
under Rule 16 of the Central Civil Services Rules, 1965
(hereinafter referred to as "CCS Rules"). In response to that
Writ Petition No.895/2011
memo, petitioner submitted representation and explained the
circumstances in which the cash came to be retained in Post
Office that after closing of account of Post Office at closing
forenoon hours, it was not possible to receive cash from the
counter individually and to remit the cash to the Bank before
13:00 Hrs. on that day. However, the explanation submitted by
petitioner was not accepted and on 26/8/2004, the respondent
No.4 ordered that amount of Rs.1,08,000/- should be recovered
from the pay of petitioner into 60 equal installments of Rs.1800/-
per month with immediate effect. That order was challenged by
the petitioner by filing Appeal, which was dismissed on
14/12/2004 by respondent No.3. The revision petition filed by
the petitioner came to be rejected on 11.10.2005 by respondent
No.2. Therefore, petitioner preferred Appeal before the CAT,
Bench Mumbai, which was dismissed on 26/2/2010. That order
is challenged in this Writ Petition.
3. The respondents opposed the petition on the ground
that, as per the rules, the authorised minimum balance that is to
be kept at Post Office concerned was Rs.20,000/- only. The
SPOs, Beed Division, Beed, by his order No.GE-10/Cash/
Balance/2003, dated 31/10/2003 had asked all the SPMs not to
retain the cash balance in respect of any liability. The petitioner
being Treasurer, was bound to follow the directions and ensure
Writ Petition No.895/2011
that only the minimum balance of Rs.20,000/- ought to have
been kept in the Post Office. As the petitioner had acted in an
irresponsible way, thereby the Postal Department has sustained
loss of Rs.2,74,050/-, the disciplinary action had rightly been
taken place.
4. We have to examine the correctness of the order
passed by learned Member of the CAT through very narrow scope
of the enquiry. In view of the law laid down by the Apex Court in
Principal Secretary of Government of Andhra Pradesh and
another Vs. M. Adinarayan reported in (AIR 2004 SC 579),
the Administrative Tribunal cannot sit as Court of appeal over
decision based on the finding of disciplinary proceedings. Judicial
review cannot extend to examination of correctness of the
charges, as it is not an appeal but only a review of the matter in
which decision was made. In Sayyed Rahmuddin Vs. Director
General, CSIR and others, reported in (2001(9) SCC 575),
the Apex held that the conclusion or the findings of fact arising in
any disciplinary enquiry, can be interfered with only when there
are no material for the said conclusion or that the conclusion
cannot be that of a reasonable man. In Damopanha Sagar,
Rural Regional Bank and another Vs. Mannalal Jain
reported in (AIR 2005 SCW 95), the Hon'ble Supreme Court
held that scope of judicial review is limited and Court could not
Writ Petition No.895/2011
interfere with administrative decision unless it was illogical or it
was shocking to the conscience of the Court.
5. Learned Advocate for the petitioner raised legal
objection that, without holding regular departmental enquiry
under CCS Rules, the respondent imposed the minor penalty of
recovery of Rs.1,08,000/-. He has drawn our attention to Rule
16 of CCS Rules which reads as under :
"16. Procedure for imposing minor penalties:-
(1) Subject to the provisions of sub-rule (3) of Rule
15, no order imposing on a Government Servant any
of the penalties specified in clauses (i) to Iiv) of Rule
11 shall be made except after --
(a) informing the Government Servant in writing of
the proposal to take action against him and of the
imputations of misconduct or misbehaviour on which it
is proposed to be taken, and giving him unreasonable
opportunity of making such representation as he may
wish to make against the proposal;
(b) holding an inquiry in the manner laid down in
sub-rules (3) to (23) of Rule 14, in every case in which
the disciplinary authority is of the opinion that such
inquiry is necessary;
(c) taking the representation, if any, submitted by
the Government Servant under clause (a) and the
record of inquiry, if any, held under clause (b) into
consideration;
(d) recording a finding on each imputation of
misconduct or misbehaviour; and
(e) consulting the Commission where such
consultation is necessary.
(1-A) Notwithstanding anything contained in clause
(b) of sub-rule (1), if in a case it is proposed after
considering the representation, if any, made by the
Writ Petition No.895/2011
Government Servant under clause (a) of that sub-rule,
to withhold increments of pay and such withholding of
increments is likely to affect adversely the amount of
pension payable to the Government Servant or to
withhold increments of pay for a period exceeding
three years or to withhold increments of pay with
cumulative effect for any period, an inquiry shall be
held in the manner laid down in sub-rules (3) to (23) of
Rule 14, before making any order imposing on the
Government Servant any such penalty.
(2) ..........
. . . . . . . . . . ."
6. A bare glance at Rule 16 makes it clear that,
discretion lies with disciplinary authority either to hold regular
departmental enquiry by recording statements of witnesses etc.
or to impose minor penalty of recovery of loss sustained by the
Government after giving reasonable opportunity of making
representation to the Government servant, after service of
written proposal to take action against him together with
imputation of misconduct or misbehaviour on which it is proposed
to be taken. Thus, we do not find any substance in the
preliminary objection raised by learned Advocate for the
petitioner.
7. The next submission of learned Advocate for the
petitioner is that, on 13/4/2004, the petitioner kept the cash of
Rs.2,74,050/- in the safe of the office even after office hours
because on 15/4/2004, that amount was necessary for making
payment to the customers in the early morning hours i.e. before
Writ Petition No.895/2011
opening of the Bank. He submitted that, though Department had
issued directions to all Sub-Postmasters to retain only minimum
authorised cash, even then the Sub-Postmaster can retain cash
in the office than permitted limit if such cash is required to fulfill
the liabilities of the Department.
8. In the case at hand, undisputedly the petitioner was
Treasurer at Kaij Sub Post Office, where the incident of theft took
place during the night of 13/4/2004 or 14/4/2004, when the cash
was kept in the safe of the office. In that incident, cash amount
of Rs.2,74,050/- was stolen by the miscreants. The matter was
reported to the Police Station and during investigation, some
suspects were arrested. Respondent No.4 served memo dated
26/8/2004 to the petitioner and sought his explanation. The
explanation submitted by petitioner was not accepted and order
was passed to recover amount of Rs.1,08,000/- from the pay of
the petitioner in 60 installments. Learned Advocate for
respondent No.1 has drawn our attention to the Memo No.GB-
10/AB/Kaij/2001, dated 9/2/2002, which reflects that the
authorised balance of Kaij Sub Post Office was fixed as follows :-
Cash Minimum : Rs.20,000/-
Cash Maximum : Rs.30,000/-
Postage Stamps : Rs.40,000/-
Revenue Stamps : Rs.20,000/-
Writ Petition No.895/2011
9. The SPOs, Beed, vide letter No.CE/10/Cash Balances/
03, dated 31/10/2003, directed all Sub-Postmasters to retain
only minimum authorised cash in balance irrespective of
liabilities. Learned Advocate for the petitioner wrongly
interpreted the words "irrespective of liabilities" and according to
him, in addition to minimum cash of Rs.20,000/-, Sub-
Postmaster is also authorised to retain additional cash which is
required for payment of other liabilities of the Department.
However, such interpretation is absolutely wrong. "Irrespective
of liabilities" means whatever liabilities of the Department may
be, the Sub-Postmaster cannot retain cash in the office more
than Rs.20,000/-.
10. Thus, obviously, the petitioner was duty bound to
deposit the additional cash to Bank after retaining only permitted
amount of Rs.20,000/- in the safe. Had the petitioner obeyed
the directions of the superiors, the loss of Rs.2,74,050/- to the
Department due to theft would have been avoided. Thus,
obviously, due to the negligence on the part of petitioner in
performing his duties as Treasurer, the Postal Department
sustained total loss of Rs.2,74,050/-.
11. The next objection of learned Advocate for the
petitioner is that, the penalty imposed by the Department is
disproportionate. Our attention was drawn towards Rules 106
Writ Petition No.895/2011
and 107 of Posts and Telegraphs Manual Vol. III, which read as
under :
"106. In the case of proceedings relating to recovery
of pecuniary losses caused to the Government by
negligence, or breach of orders of 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
negligence or breach caused the loss.
107. In a case of loss caused to the Government,
the competent disciplinary authority should correctly
assess in a realistic manner the contributory
negligence on the part of an officer and while
determining any omission or lapses on the part of an
officer, the bearing of such lapses on the loss
considered and the extenuating circumstances in
which the duties were performed by the officer shall
be given due weight."
12. In the case at hand, it is established that, on account
of negligence on the part of petitioner and Sub-Postmaster, the
Department sustained loss of Rs.2,74,050/- and, therefore, in
view of above referred two Rules, the recovery of only
Rs.1,08,000/- from the petitioner is justified considering the total
loss sustained by the Department.
13. Coming to the judgment and order passed by the
learned Member of Central Administrative Tribunal, we are fully
satisfied that no ground is made out by petitioner to interfere
that order. The administrative decision taken by respondents is
not illogical or shocking to the conscious of the Court. It follows
Writ Petition No.895/2011
that, this petition being devoid of merits, deserves to be rejected.
Accordingly, we pass the following order :
ORDER
Writ Petition is rejected. Rule is discharged. No
order as to costs.
(SUNIL K. KOTWAL) (ANOOP V. MOHTA)
JUDGE JUDGE
fmp/
