W.P. No.10471.10 HIGH COURT OF MADHYA PRADESH PRINCIPAL BENCH AT JABALPUR Writ Petition No. 10471 of 2010(s) Union of India and others Versus M. L. Khare O R D E R (28/09/2011) Shri S.A. Dharmadhikari, learned counsel for the petitioners. Shri Vijay Tripathi, learned counsel for the respondent. With consent, the petition is heard finally. 1. This order shall also govern the disposal of Writ Petitions No. 10512 of 2010(s), 10584 of 2010(s), 10665 of 2010(s) and 10754 of 2010(s) as the issue involved in these petitions is identical. The petitions were, therefore, analogously heard and are decided by this common order. 2. For the sake of order facts are taken from Writ Petition No. 10471/2010. The Central Administrative Tribunal, Jabalpur Bench, Jabalpur, while upholding the charge of misconduct levelled against the respondent (Applicant before the Tribunal) has interfered with the punishment of recovery. 3. Respondent while working as Supervisor in SBCO, Head Post Office, Balaghat, was charge- sheeted under Rule 16 of Central Civil Services (Classification, Control & Appeal) Rules, 1965 (hereinafter referred to as 'Rules of 1965') on 18-08-2002. 4. Charges levelled against him were that while W.P. No.10471.10 working as Supervisor with effect from 18-02-2002 he derelicted in discharge of his duty as Supervisor as a result whereof one Shri Mahesh Padwar, Sub Post Master, Bisra Sub Office made bogus withdrawals from different saving Bank, Recurring Deposit, Term Deposit and Monthly Income Scheme accounts and did not account for the same in respective accounts, resulting in bogus withdrawals and loss to the Government to the tune of Rs. 29,21,222/-. It was alleged that charge sheeted employee failed to ensure proper voucher checking of SB/RD/TD/MIS etc. of Bisra Sub Post Office as required under the S.B. Control Procedure and thereby violated the instructions contained in Government of India Ministry of Communication, Department of Posts, No. 113-1/2002 SB, dated 05-05-2003 and SB Order No. 33/2002 dated 13-12-2002, violating Rules 3(1)(ii) and 3 (2) (I) of CCS (conduct) Rules, 1964. 5. Denial of charges led to initiation of departmental proceedings which culminated into the order dated 20-06-2008; whereby, the punishment of recovery of Rs. 1,00,000/- from the pay of the respondent at the rate of Rs. 3,000/- per month was ordered. 6. Aggrieved, the respondent filed O.A. No. 191 of 2009 before the Tribunal. 7. The Tribunal while upholding the finding of misconduct recorded by the disciplinary authority, however, interfered with the quantum of punishment and accordingly quashed the impugned order of recovery. The Tribunal observed that the respondent- management failed to establish a direct link between the defaults by the applicant and the loss suffered by W.P. No.10471.10 the Government. Tribunal relied upon the paragraph 106 and 107 of the Post Office Manual Volume III. 8. The Tribnunal held in paragraph 14 : “14. Usually, the disciplinary authority is the best judge in respect of punishment to be awarded to any Government servant. But if there is any basic legal shortcoming in the view taken by the disciplinary authority, the court can certainly interfere in the matter. A perusal of the disciplinary authority's order and the order of the appellate authority clearly shows that they have established he default of the applicant in not complying with various rules and in not discharging his duties in a proper manner. At the same time, they have failed to establish a direct link between the defaults of the applicant and the loss suffered by the Government. Looking to Rules 106 and 107 of the Post Office Manual, Volume III, quoted above, and also the authorities cited by the learned counsel for the applicant, I consider it proper to set aside the punishment awarded to the applicant, because in this case it has not been established that the applicant was directly responsible for the loss suffered by the Government, without disturbing the finding that the applicant was guilty of the charges levelled against him. In other words, upholding the orders of the disciplinary authority as well as the appellate authority except for the actual punishment awarded to the applicant, the matter of punishment to be awarded to the applicant is remitted back to the appellate authority who shall re-decide the issue within six months of the receipt of this order after giving a proper opportunity of hearing to the applicant. As per rules, the following minor penalties can be imposed on a Government servant : (i) censure; (ii)withholding of his promotion; (iii)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; (iv)withholding of increments of pay. The disciplinary authority, in this case, imposed penalty no. (iii) which was not W.P. No.10471.10 justified in the facts of the case as the same is legally untenable. Therefore, the appellate authority shall be free to consider the facts of the case, and after hearing the applicant, may impose any one of the above minor penalties on the applicant, except penalty no. (iii). As a logical corollary, it is also ordered that the Respondents shall refund the amount already recovered from the applicant, if any. The amount already recovered should be refunded to the applicant within two months of the receipt of this order and the matter of punishment should be re-decided by the appellate authority, after hearing the applicant, within six months of the receipt of this order.” 9. It is the said order which is being challenged in this petition. 10. It is urged that the Tribunal fell into patent error in exonerating the respondent from recovery of pecuniary loss caused to the Government due to negligence. It is contended that it was beyond the powers of the Tribunal to have set aside the recovery more particularly when the charges of misconduct were proved and upheld by the Tribunal. It is contended that Tribunal misconstrued not only Rule 11 (iii) of the Rules of 1965 but also paragraph 106 and 107 of the Post Office Manual Vol. III. It is contended that upon true construction of the provision it would borne out therefrom that it is not a condition precedent for recovery of loss to the revenue that a person at whose instance the loss is incurred has personally gained from it. It is urged that the Tribunal has wrongly interfered with the punishment. 11. The respondent on his turn supports the order passed by the Tribunal. 12. The question for consideration is whether when the charge of negligence resulting in pecuniary loss to W.P. No.10471.10 the Government having been proved in a departmental enquiry and upheld by the Tribunal, the Tribunal was justified in interfering with the punishment of recovery. 13. Trite it is that punishment is the discretion of the disciplinary authority and the Court will not substitute its own judgment [Administrator, Union Territory of Dadar and Nagar Haveli v. Gulabhia M. Lad : (2010) 5 SCC 775, paragraph 14, State Bank of Mysore and others v. M. C. Krishnappa :(2011) 7 SCC 325, Paragraph 8], unless the punishment shocks the conscience (Union of India v. Dwarka Prasad Tiwari : (2006) 10 SCC 388 Paragraph 10 & 15). Even in such cases it is held that, it should ordinarily remit the matter to disciplinary authority for reconsideration of punishment. 14. Rule 11 of Rules of 1965 lays down different penalties which can be imposed on a Central Govt. Servant found guilty of charges either under Rule 14 or 16, as the case may be. Clauses (i) and (iv) of Rule 11 lay down minor penalties. Clauses (v) to (ix) lay down major penalties. An exception vide explanation is carved out, as the instances given thereunder are not construed as penalties. 15. We are concerned with clause (iii) of Rule 11 which stipulates that on found guilty of the charges and for good and sufficient reasons penalty of “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” can be imposed. 16. In other words if due to negligence of Govt. servant there is pecuniary loss caused to the W.P. No.10471.10 Government, the discretion lies with the disciplinary authority to recover from the pay of Government servant either the whole or part of such loss. Personal gain of a Government servant is not the condition precedent for effecting a recovery once it is proved that the loss is attributed to the negligence. 17. In the case at hand the loss to the Government ascertained is Rs. 29,21,222/-. The respondent though is not held guilty of charge of embezzlement but is found negligent in supervising which led to siphoning of colossis amount of money by a co-accused. In other words had the respondent be good at supervision, the attempt by co-employee in retrieving the money could have been checked. The Tribunal in our considered opinion is not justified in holding that unless there is personal gain mere negligence and the loss occasioned thereon will not be sufficient a ground to effect recovery of whole or part of such loss. 18. We accordingly set aside the order passed by the Tribunal and dismiss the Original Application filed by the respondent herein. 19. The petition is allowed to the extent above. No costs. 20. A copy of this order be kept in Writ Petitions No. 10512 of 2010(s), 10584 of 2010(s), 10665 of 2010(s) and 10754 of 2010(s). (SANJAY YADAV) (T.K.KAUSHAL) JUDGE JUDGE SC