Contributory Negligence: Once it is held that there was no wrongful gain to the respondent, or no wrongful loss caused to the Department on account of the official's negligence, then there will be no question of effecting any recovery

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In the High Court of Judicature at Madras Dated: 08/01/2003

Coram

The Hon'ble Mr. Justice V.S. SIRPURKAR
and
The Hon'ble Mr. Justice F.M.IBRAHIM KALIFULLA

Writ Petition No. 3457 of 1999


Department of Posts,
Vellore Division,
Vellore. ... Petitioner

-Vs-

1. Smt. Beula Arulrathinam
2/113-D, Living Spring Avenue
Sanjeevipuram, Bagayam,
Vellore  2.

2. Registrar,
Central Administrative Tribunal,
Madras Bench, Chennai 104. ... Respondents


Petition under Article 226 of the Constitution of India praying for
issuance of a writ of certiorari calling for the records relating to the order
dated 1.12.98 made in O.A. No. 816 of 1996 on the file of the Central
Administrative Tribunal, Madras Bench and quash the same.

For petitioner : Mr.T.S.Sivagnanam
A.C.G.S.C.

For 1st respondent : Mr.Lita Srinivasan

O R D E R

(Order of the Court was made by V.S. SIRPURKAR, J.) The petitioner herein challenges the order passed by the Central Administrative Tribunal whereby the Central Administrative Tribunal has quashed the punishment of recovery awarded to the respondent. The respondent at the relevant time was working as treasurer in Vellore Head Post Office. She was posted there by order dated 13.12.1993. She took charge from one Manoharan on that day. She acknowledged that she had taken over postage and other stamps for Rs. 5,92,903.95 from her predecessor under acquittance in the treasurer's cash book dated 1 3.12.1993. However, on a subsequent verification of the cash and the stamps, a shortage of Rs.1,41,630/- was noticed in the stamp balance held by the respondent and, therefore, a notice under Rule 16 of Central Civil Service (C.C.A.) Rules 1965 was issued. She offered her explanation. In the explanation she claimed that she had depended upon the signature of the Deputy Post Master in the treasury cash book. She also stated that she believed the full value of the packets which were closed packets. The charge framed against her was on account of the shortage of postage stamps for Rs.1,41,630/- in her possession. It is stated in the charge and more particularly in the fourth paragraph as under : " ..... thereby there was a shortage of postage stamps for Rs.1,41,6 30/- noticed with her on the day and the Department sustained a loss of Rs.1,41,630/- on account of the shortage and thereby failed to maintain absolute integrity and devotion to duty as enjoined under Rule 3 (1)(1) and (ii) of Central Civil Services (Conduct) Rules, 1964. " In short, what was held against her was that she had misappropriated and caused loss to the department of that much of amount. The disciplinary authority found her guilty but it was stated by him that the irregularity committed on her part was explained. He came to the conclusion that she contributed her negligence for the shortage of postage stamps for Rs.1,41,630/-. On that count he ordered the recovery of Rs.16,308/- in 36 equal monthly instalment of Rs.453/- per month from July 1996.

2. In appeal this punishment was reduced and instead recovery of Rs.8,154/- in 36 equal monthly instalments was ordered against her. It was observed by the appellate authority that she had contributed to the success of the misappropriation by her negligence and lack of devotion to duty. However, considering the financial burden on the respondent, the punishment was reduced. This was challenged by her before the Central Administrative Tribunal, hereinafter called the Tribunal.

3. The Tribunal, however, came to the conclusion that the whole misappropriation was made not by this respondent but by Manoharan and for this Manoharan, from whom she had taken charge, was already dismissed. The Tribunal noted that the appellate authority itself had stated that there was nothing to indicate that there was lack of integrity on the part of the respondent. The Tribunal, therefore, came to the conclusion that once there was no question of any lack of integrity, there was no question of contributing anything to the misappropriation. The Tribunal came to the conclusion that the charge was framed for one offence while the punishment has been imposed for another offence. Since the contributory negligence and lack of devotion to duty was not the charge made against the respondent, the Tribunal

allowed the original application and quashed the punishment awarded by the appellate authority.

4. The Postal department, feeling aggrieved, has filed this writ petition. The learned counsel appearing on behalf of the petitioner department suggests that the Tribunal has exceeded its jurisdiction in entering into the arena of the sufficiency of the punishment. The learned counsel says that it was not within the jurisdiction of the Tribunal when the punishment was specifically considered by the concerned authority. The learned counsel also says that at any rate it was proved that the respondent had worked in a negligent manner and therefore she was bound to be awarded some punishment. The learned counsel says that the matter can be remanded to the Tribunal to reconsider the question of the punishment because, obviously, the concerned employer was not wholly exonerated and could not be so wholly exonerated by the Tribunal also.

5. We were taken through the order of the Tribunal as also the other records. There could be no dispute that the tenor of the charge itself is that she had herself caused the loss of Rs.1,40,630/- to the Department because there was a shortage found in her stock. It is nowhere stated in the charge that she had negligently accepted the charge from Manoharan. The tenor of the charge was not that it is she who was benefited because of the shortage found. It is for this reason that we have quoted the charge extensively. The Tribunal, therefore recorded a finding that when she was completely exonerated of causing the shortage or loss to the department, there would be no question of punishing her for that charge. The Tribunal, in our opinion, has correctly held that the applicant could not be held responsible for the contributory negligence also for the simple reason that it is not because of her contribution that Manoharan was able to commit misappropriation in respect of the stamps. It is nobody's case that she had a common scheme or there was meeting of mind between Manoharan and herself, which helped Manoharan to decamp with few stamps. Once this aspect goes then, there would be nothing in so far as the charge is concerned. It is for this reason that the Tribunal has recorded a finding that there was no question of any doubtful integrity on the part of the respondent. Even before us the learned counsel did not claim this to be a case of doubtful integrity of the respondent. The learned counsel is harping on the negligence. However, the charge against the respondent was that of a contributory negligence thereby meaning that negligence shown by her helped Manoharan to decamp with some stamps. That is not the case either alleged or proved. Under such circumstances, in our opinion, the Tribunal has taken a right view that the respondent could not be punished. We agree with the Tribunal therefore that the respondent could not be punished for the alleged, so called, negligence. There is one more reason why we are holding that the punishment of recovery was also not a proper punishment. Rule 1 1 of The Civil Service Conduct Rules speaks about theminor penalties. Rule 11 (iii) is as follows :

" recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders; " Once it is held that there was no wrongful gain to the respondent, or no wrongful loss caused to the Department on account of her negligence, then there will be no question of effecting any recovery. We fail to understand as to how the punishment of recovery was awarded to the respondent when it is nobody's case that she helped Manoharan to decamp with the concerned stamps or she in any manner aided the misconduct committed by Manoharan. Even for this reason, the punishment of recovery was not possible.

6. In short, we agree with the Tribunal's order and confirm the same. The writ petition has no merits and it is dismissed. Consequently, connected miscellaneous petitions is also dismissed.

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