IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 8387 of 2008 Decided on: 15.12.2010. Shakti Chand …Petitioner. Versus H.P.State Forest Corporation and Others ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioner : Ms. Archana Dutt, Advocate. For the Respondents : Mr. J.R.Thakur, Advocate. Kuldip Singh, J (Oral) The petitioner has prayed for quashing and setting aside order dated 6.6.2001 Annexure A-7, memo dated 16.3.2002 Annexure A- 14 with further prayer that respondents may be directed not to effect any recovery from the petitioner. It has also been prayed that memo dated 4.4.1997 Annexure A-4 may also be quashed and respondents may also be directed to refund the amount of ` 9818.67 recovered from the petitioner along with interest at the rate of 18% per annum. 2. The further case of the petitioner is that he was engaged as Timber Watcher under respondent No.3 on daily wages on 9.1.1985, he was lateron regularised in January, 1993. The petitioner was incharge of resin Depot Koke Baggi in District Hamirpur. On 15.1.1993, 100 tins of resin were stolen from resin Depot Koke Baggi. The Chowkidar of the 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 Depot was on leave. The petitioner was looking after the Depot. On 16.1.1993 the petitioner reported the matter to Assistant Manager, Jawalamukhi. The petitioner also went to the Police Station on 17.1.1993 and lodged FIR No. 10 of 1993. 3. The police during investigation arrested one Babu Ram and Ram Murti, Block Officer. The respondent No.1 Corporation initiated departmental proceedings against the defaulting officials. On 30.9.1996 the respondent No.3 issued letter to the petitioner asking his explanation as to why an amount of ` 29,456/- being the cost of stolen resin should not be recovered from him. The petitioner submitted reply dated 16.10.1996 and placed complete facts therein. 4. The petitioner did not receive any communication from the respondents but vide memo dated 4.4.1997 the respondent No.3 issued recovery letter in respect of three officials including the petitioner asking them to deposit an amount of ` 9818.67 each in instalments. The petitioner made representations to the respondents requesting them not to effect the recovery from him. However, despite protests by the petitioner an amount of ` 9818.67 was recovered from the salary of the petitioner November 1997 to November, 1999. It has been pleaded that this action of the respondents was wrong, illegal and arbitrary. 5. The respondent No.2 issued another order dated 6.6.2001 stating therein that the Director (North) has absolved Ashwani Kumar, the then Assistant Manager from recovery of ` 9819/- and, therefore, this amount will also be recovered from the petitioner from his salary. The petitioner filed detailed representation against this order but without any positive result. The petitioner has been made scapegoat being a low paid employee. It has been alleged that the respondents threatened 3 to recover an amount of ` 9819/- from the petitioner even though temporarily the recovery of ` 9819/- was stayed during the pendency of the representation of the petitioner. 6. In December 2001, respondent No.1 without deciding the representation of the petitioner issued instructions to respondent No.3 to start recovery from the salary of the petitioner. The petitioner again represented on 11.1.2001 against the threatened act of recovery, but the recovery has been effected from the salary of the petitioner for the month of December, 2001.The petitioner has received memo dated 16.3.2002 vide which he was informed that his appeal has been rejected by respondent No.1 and, therefore, the petitioner has filed the petition for the reliefs noticed above. 7. The petition has been contested by respondents by filing reply. In the reply, it has been stated that the petitioner was not incharge of the Baggi Koke Depot but he was deputed in place of Rajan Kumar, who was on leave. The petitioner represented the matter through controlling officer, Assistant Manager, Jawalamukhi. It was the duty of the petitioner to take care of the property of the Government entrusted to him. It has been admitted that Ram Murti, Deputy Ranger and Babu Ram were arrested. The defaulting officials namely Ram Murti, Deputy Ranger and Shakti Chand , Timber Watcher had deposited the recovery levied upon them. The petitioner was called upon to explain as to why the cost of stolen resin be not recovered from him. He submitted his explanation in writing. It has been admitted that recovery was effected from the salary of the petitioner. It has been denied that petitioner was not liable for the theft which took place when he was incharge of the Depot. The recovery was ordered to be made from Ashwani Kumar, 4 Assistant Manager under bonafide mistake and, therefore, he was absolved from liability by the higher authorities and recovery was ordered to be effected from the petitioner. The representation of the petitioner was rejected by the competent authority. The respondents have defended their action for ordering recovery from the petitioner. The respondents have prayed for dismissal of the petition. 8. I have heard the learned counsel for the parties. The memo dated 30.9.1996 was issued to the petitioner stating therein that on 15.1.1993 from Koke Baggi Depot, 100 tins of resin (private) valuing ` 29,456/- were stolen and the explanation of the petitioner was called within 10 days. The memo dated 30.9.1996 was received by the petitioner on 5.10.1996. The petitioner submitted detailed reply dated 16.10.1996 to the memo dated 30.9.1996 and denied his involvement and liability to pay any amount. On 4.4.1997 the respondent No.3 issued memo to Ashwani Kumar, Forest Ranger and stated that the Director (North) Dharamshala has given orders for recovery of ` 29456/- from the concerned Assistant Manager, Deputy Manager and Daily Wager. It has also been stated that an amount of ` 9818.67 comes to the share of Ashwani Kumar. A copy of the letter dated 4.4.1997 was also marked to the petitioner wherein it has been stated that recovery of ` 9818.67 comes to his share. He was directed to deposit the said amount at the rate of ` 400/- per month with last instalment of ` 218.67 through concerned Assistant Manager. The petitioner represented against this recovery of ` 9818.67 but without any result and ultimately an amount of ` 9818.67 was recovered from the salary of the petitioner. It is the case of the petitioner that the recovery of ` 9818.67 is wrong, illegal and arbitrary. 5 9. The petitioner has placed on record office order No.34 Annexure A-7 endorsed to petitioner on 6.6.2001 wherein it has been stated that the Director (North) vide letter dated 16.5.2001 has absolved Ashwani Kumar, Forest Ranger from recovery of ` 9819/- and his share of the recovery has been ordered to be recovered from Shakti Chand petitioner and, therefore, order for recovery of ` 9819/- was made against petitioner and amount of ` 9819/- was ordered to be recovered from the salary of the petitioner from June 2001 to February 2002 at the rate of ` 973/- and in March 2002 an amount of ` 1062/- was to be recovered from the salary of the petitioner. The petitioner filed detailed representation dated 25.6.2001 against office order No. 34 dated 6.6.2001. This representation of the petitioner was dismissed vide communication dated 16.3.2002 Annexure A-14. 10. It emerges from the material on record that 100 resin tins were stolen from Koke Baggi Depot on 15.1.1993, on that date the Chowkidar was on leave and petitioner was deputed to look after the Depot. The question involved in the petition is whether the recovery of ` 9818.67 or ` 9819/- ordered against the petitioner by the respondents is legally justifiable. The respondent No.3 had issued memo dated 30.9.1996 to the petitioner asking his explanation regarding the theft of 100 tins of resin from Koke Baggi Depot costing ` 29456/-. The petitioner gave detailed reply to the memo and denied his liability. There is nothing on record that the reply dated 16.10.1996 of the petitioner to memo dated 30.9.1996 was considered by the respondents. 11. It appears that Director (North) ordered recovery of ` 9818.67 from various officials including petitioner as per memo dated 4.4.1997. Here again there is nothing on record to show that petitioner 6 was associated in any inquiry in which the Director (North) has fixed the liability of the officials including the petitioner for recovery of ` 9818.67. The petitioner made several representations but to no effect. In fact the amount of ` 9818.67 was actually recovered from the petitioner. 12. The respondents issued another office order dated 6.6.2001 directing recovery of ` 9819/- from petitioner instead of Ashwani Kumar, Forest Ranger, who was initially directed to pay the said amount of ` 9819/-. It is also not clear how the liability of Ashwani Kumar for payment of ` 9819/- was shifted to the petitioner. In any case, the petitioner made representation dated 25.6.2001 against office order No. 34 which has been rejected by cryptic communication dated 16.3.2002. The dismissal of the representation/appeal of the petitioner against office order No.34 visited the petitioner with civil consequences, therefore, it was incumbent upon the concerned authority to consider the representation/appeal of the petitioner and dispose of the same by speaking order. But in the order dated 16.3.2002 no reasons have been assigned. Hence, the memo dated 16.3.2002 is not sustainable. 13. The perusal of the respective stand of the petitioner and respondents coupled with material placed on record makes it clear that the petitioner was not associated in any inquiry regarding recovery of ` 9818.67 or ` 9819/-. The petitioner was asked to explain vide memo dated 30.9.1996. He replied the same. But his explanation it appears, was not considered by the respondents nor he was associated in any inquiry. The petitioner immediately after noticing the theft in the Depot reported the matter to his superiors and even lodged an FIR. In the police case, the petitioner was not an accused. The respondents have not followed minimum procedure so as to fix the responsibility of 7 petitioner for the alleged loss and to recover any amount from the petitioner. In these circumstances, the recovery of an amount of ` 9818.67 or ` 9819/- against the petitioner is wrong, illegal and not sustainable The respondents have already recovered an amount of ` 9818.67 unauthorisedly from the petitioner, therefore, respondents are liable to refund the amount of ` 9818.67 to the petitioner. 14. No other point was urged. 15. The result of the above discussion, the petition is allowed. The memo dated 4.4.1997 Annexure A-4, office order No.34 dated 6.6.2001 Annexure A-7 and memo dated 16.3.2002 Annexure A-14 so far petitioner is concerned are quashed and set-aside. The respondents are directed to refund an amount of ` 9818.67 to the petitioner within two months from the date of receipt of copy of this judgment to be supplied by the petitioner to the competent authority, failing which the respondents shall be liable to pay interest at the rate of 9% per annum to the petitioner on the amount of ` 9818.67 from November 1999 till payment. ( Kuldip Singh ) December 15, 2010 Judge. (GR)