Delhi High Court
Uoi & Ors vs Sh. Kailash Chandra Gupta on 16 December, 2011
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 16th December, 2011.
+ W.P.(C) 8720/2011
% UOI & ORS. .......Petitioners
Through: Mr. R.V. Sinha & Ms. Sangita Rai,
Advs.
Versus
SH. KAILASH CHANDRA GUPTA ..... Respondent
Through: None.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
JUDGMENT
RAJIV SAHAI ENDLAW, J.
1. The petition impugns, the order dated 26.11.2010 of the Central
Administrative Tribunal, Principal Bench, New Delhi allowing the O.A.
No.662/2010 preferred by the respondent, as also the order dated 19.08.2011
dismissing the application for review preferred by the petitioner. The O.A.
aforesaid was preferred by the respondent impugning the departmental order
dated 01.11.2008 affirmed by the appellate authority on 19.05.2009 of
recovery of `45,000/- in nine equal installments from the pay of the
respondent. The said recovery was ordered from the respondent for the
reason of the respondent, while officiating as Assistant Post Master (APM),
SB IVth Group, Aligarh Head Post Office, having failed to supervise the
work being done by the Ledger Clerks and having not noted any objection
upon the irregularities i.e. incomplete posting work, improper checking of
the vouchers, being committed by the Ledger Clerks and which resulted in
one Sh. Shyam Pal Singh posted in Somna Post Office committing a fraud
and inflicting loss amounting to `10,56,764/- on the department. Since the
respondent was not the principal offender and had officiated on the position
where he was required to supervise the Ledger Clerks for a very short time,
inspite of loss being of `10,56,764/-, the recovery of `45,000/- was ordered
from the respondent.
2. The Tribunal vide impugned order dated 26.11.2010 allowed the O.A.
of the respondent merely on the ground that since the loss sustained of
`10,56,764/- had been processed to be recovered from Sh. Shyam Pal Singh
against whom an FIR for offences of misappropriation and breach of trust
has also been lodged, the recovery effected from the respondent over and
above the sustained loss could not be sustained in law.
3. The petitioner sought review pleading that the Tribunal had not
appreciated that the loss of `10,56,764/- could not be recovered from Sh.
Shyam Pal Singh and a sum of only `1,35,695/- could be recovered from his
assets and thus need was felt to recover the remaining loss from the
subsidiary offenders including the respondent. The said review was
however dismissed as not maintainable.
4. The petitioner before us has found fault with the reasoning given by
the Tribunal for allowing the O.A. of the respondent and we are in
agreement with the same. We are unable to accept the reasoning / logic
given by the Tribunal. The Tribunal, without satisfying itself that the entire
loss had been recovered, could not have held the recovery from the
respondent to be over and above the sustained loss.
5. However, notwithstanding the same, we, in exercise of our powers of
judicial review are still of the view that this is not a fit case to interfere with
the orders of the Tribunal. From a perusal of the record of the O.A. placed
before us, we find that the irregularity during the period the respondent was
officiating as APM, SB IVth Group, Aligarh Head Post Office was of
`2,000/- only. There is nothing to show as to why and how the recovery
from the respondent was computed at `45,000/-. It is also borne out from
the records that, the respondent is a handicapped person; has since retired
and is settled at Aligarh, his O.A. was entertained by the Principal Bench at
Delhi, owing to his being handicapped and difficulty in approaching the
Tribunal at Allahabad much farther from Aligarh than Delhi. We also find
from the records that no inquiry was ordered or conducted before inflicting
the order of recovery of `45,000/- from the respondent. The petitioner in its
reply, to the O.A. before the Tribunal, to the said plea merely pleaded that
inquiry was not felt necessary owing to the facts adduced earlier. We also
find that the respondent officiated on the supervising position intermittently
and for a very short period and it was inter alia his plea that the accounts at
the contemporaneous time had been computerized and the manual checking
was got stopped. The disciplinary authority and the appellate authority
however instead of returning any finding of fact on his said plea merely
rejected the same for the reason of the respondent having not placed on
record any order stopping the manual checking.
6. For all the aforesaid reasons, we are of the opinion that even if the
order of the Tribunal, having been found to be unsustainable in law, is set
aside by us, the preponderance of probability is of the matter being
remanded for proper inquiry after giving due opportunity to the respondent.
Considering that the respondent has already retired, is a handicapped person,
and further considering the stakes to be of `45,000/- only, we are of the view
that it would not be worthwhile to allow the matter to languish any further.
Rather, it appears that the time, money, effort and energy spent by the
petitioner itself in the process may be much more than `45,000/-. The
powers of this Court while exercising jurisdiction under Article 226 are
wide. This Court, to do substantial justice between the parties, can decline
relief even where entitlement in law is made out (see Chandra Singh Vs.
State of Rajasthan (2003) 6 SCC 545 and ONGC Ltd. Vs. Sendhabhai
Vastram Patel (2005) 6 SCC 454) and similarly grant relief inspite technical
violation as aforesaid. Similarly, in Taherakhatoon Vs. Salambin
Mohammad (1999) 2 SCC 635 even at the time of the dealing with the
appeal after grant of special leave, it was held that the Court was not bound
to go into the merits and even if entering into the merits and finding an error,
was not bound to interfere if the justice of the case on facts does not require
interference or if the relief could be moulded in a different fashion. This
Court has echoed the same views in Filmistan Exhibitors Ltd. v. N.C.T.,
thr. Secy. Labour 131 (2006) DLT 648 by holding that even if there is a
violation of law, this Court is not bound to exercise discretionary jurisdiction
and in Babu Ram Sagar Vs. Presiding Officer, Labour Court
MANU/DE/9235/2006 by refusing to interfere in exercise of discretionary
powers inspite of holding the reasons given by the Labour Court to be not
convincing. The present appears to be a fit case to exercise such
discretionary powers under Article 226 of the Constitution of India
7. We thus, though disapproving of the impugned orders of the Tribunal,
nevertheless for the reasons aforesaid, dismiss the petition. No order as to
costs.
RAJIV SAHAI ENDLAW, J
ACTING CHIEF JUSTICE
DECEMBER 16, 2011
'gsr'
