Partly allowed

D. Nehemya S/o Lazarus v. The Chairman, A.P. State Civil Supplies

Telangana HC4 Dec 2012WP/13368/2004

Case brief

AI extract

What is this about?

The Supreme Court held that the Staff Conduct Regulations only authorize recovery of actual pecuniary loss caused by negligence. A circular permitting recovery of double the cost was inconsistent with these regulations. The order directing double recovery was modified to single cost.

What did the court decide?

The order directing recovery of double the cost of lost goods was set aside and modified to require recovery of only the single cost of the goods.

D. Nehemya S/o Lazarus Vs The Chairman… — Pension and Retirement Benefits | Telangana HC (2012)

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THE HON’BLE SRI JUSTICE N. RAVI SHANKAR

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WRIT PETITION No.13368 of 2004

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ORDER:

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Heard Sri K.V.N.Bhupal, the learned counsel for petitioner, and the learned Standing Counsel for Andhra Pradesh State Civil Supplies Corporation Limited for respondents.

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2. In this writ petition under Article 226 of the Constitution, the petitioner is questioning the order passed by the first respondent in his proceedings No.P.Admn.A3/009/ 2002 dated 07.07.2004 rejecting the appeal of the petitioner and directing recovery of double the cost of the quantity of the food articles that were found to have been missing from the godown of which the petitioner was in charge.

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3. At the relevant time, the petitioner was an employee of the respondent Corporation and he was posted at Mandal Level Stock (MLS) point at Nandyal and he took charge there on 17.04.1997. A disciplinary enquiry was commenced against him on the ground that he was responsible for missing of certain stocks of food articles of the respondent Corporation. The enquiry was held by the concerned official after giving opportunity to the petitioner.

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4. Thereafter, the second respondent i.e. the Vice-chairman and Managing Director after calling for the explanation of the petitioner and considering the enquiry report passed an order dated 05.07.2003 accepting the charges brought against the petitioner as proved. It may be noted that charge No.I relates to failure on the part of the petitioner to maintain correct accounts at the MLS point, Nandyal, which resulted in shortage of 892.01.750 quintals of rice on the date of inspection, charge No.II related to

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the petitioner’s failure to replenish the balance of deficit rice of 276.96.250 quintals though he was allowed time as per his request and charge No.III related to his failure to submit particulars of gold ornaments and the particulars of valuables sold and the amount derived thereon to replenish the rice on the memo issued by the District Manager of the respondent Corporation. The enquiry officer found all the above charges proved on enquiry and even the second respondent after considering the enquiry report accepted the same and passed the punishment order on 05.07.2003. The relevant portion of the punishment order in paras-9 and 10 thereof reads as follows.

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“9. I have gone through the record of enquiry including Enquiry Officer’s report and explanation submitted by the delinquent. It is held proved that there was a shortage of 892.01 qtls of rice and 53.35 qtls of wheat as on 31-1-98 during the tenure of Sri D.Nehemya, Asst.Gr.II as Incharge of MLS point Nandyal. Out of the above quantity he has replenished 615.05 qtls of rice and 53.35 qtls of wheat upto 7- 3-98. Thus there is a quantity of 276.96.250 gms. of rice yet to be accounted for by the D.O. And its single cost comes to Rs.2,07,721.88 and its double cost comes to Rs.4,15,443.75. The explanation of the delinquent is not convincing and devoid of merit and is a clear case of an after thought to escape from disciplinary action and evade responsibility and consequent recovery of cost of 276.96.250 qtls. of rice as observed above. Disciplinary Authority agrees with the report of the E.O. In as much as the loss has been caused due to negligence on the part of the delinquent, the entire cost may be recovered at double the cost as per existing Board resolution. Thus, Sri D.Nehemya, Asst.Gr.II is wholly responsible to make good of the loss sustained by the Corporation for a qty. of 276.96.250 gms. of rice valued at Rs.4,15,443.75 at double the cost apart from liable for punishment for the shortages occurred which have been misappropriated by him during his tenure as Incharge of MLS Point, Nandyal and also for manipulation of records at a later date to suit his convenience. Hence the following orders are issued.

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10. O R D E R:

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Sri D.Nehemya, Asst.Gr-II is directed to remit the single cost of shortage amounting to Rs.2,07,721.88 within one

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month and the balance amount (double the cost) shall be recovered in 100 instalments @ Rs.2050/- per month and @ Rs.2721.88 in 101^st instalment. In case the delinquent fails to remit single cost, the same shall be recovered at Rs.3450/per month in 119 instalments and 120^th instalment at Rs.4893.75.”

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5. Against the above order dated 05.07.2003 the petitioner filed an appeal. That appeal was placed before the Board of the respondent Corporation but the Board has rejected the same and that was again communicated by the second respondent through his order dated 07.07.2004 and further orders were also issued to the concerned authority to recover the amounts.

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6. In this writ petition, Sri Bhupal argued on the merits of the charges and also the validity of the disciplinary enquiry and the findings recorded therein. Sri Ravinder Reddy also invited my attention to the charges and the findings recorded by the enquiry officer and also the admission made by the petitioner himself regarding the shortfall and his further admission regarding his readiness to recoup the financial loss to the respondent Corporation.

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7. It may be noted here that to the show cause notice dated 29.09.2000 issued to the petitioner informing him about the charges and the findings in the enquiry report, the petitioner submitted an explanation dated 02.11.2000. In that explanation the petitioner stated that he was responsible for the shortfall but he would in substance make good the loss or pay a value of the goods lost at single cost i.e. the cost at which they worked out to the respondent Corporation.

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8. However, in his punishment order dated 02.12.2000 which is already extracted supra the second respondent stated that the

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value of the goods lost is Rs.2,07,721.88 and the petitioner should pay double the cost apart from imposing certain cuts in his increments.

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9. It may be noted that regarding the stoppage of increments there is absolutely no ground to interfere with the same at least on Charge No.1. However, coming to the payment of double the cost of the value of the goods about the loss of which there is no dispute, the learned Standing Counsel for the respondent Corporation relied upon a Circular No.A&V-66 vide proceedings No.P.Admn.A2/14027/ 2007 dated 31.12.2007 issued by the respondent Corporation. Sri Ravinder Reddy says that paragraph3 of the Circular permits imposition of double the cost of the food grains or goods lost belonging to the respondent Corporation. In other words, what the Circular says is that whenever any employee becomes responsible for the loss of food grains of the Corporation double the cost of those food grains lost can be recovered from such employee.

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10. It may be noted that disciplinary enquiries against the employees of the Corporation are governed by the Andhra Pradesh State Civil Supplies Corporation Limited Staff Conduct, Discipline and Appeals Regulations, 1975. Regulation 25 thereof deals with penalties and sub-regulation (1) thereof specifies the penalties which can be imposed.

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“1) without prejudice to the provisions of other regulations an employee who commits a breach of the rules or of regulations of the Corporation or who is guilty of negligence, inefficiency or indolence or who knowingly does anything detrimental to the interests or prestige of the Corporation or in conflict with its instructions or who commits breach of discipline, or is guilty of any other act of mis-conduct or mis-behaviour shall be liable to any of the following penalties: a) Warning b) Censure

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c) Withholding of increments or promotions. d) Recovery from pay of the whole or part of any pecuniary loss caused to the Corporation by the negligence or breach of orders.

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e) Reduction to a lower post or grade or to a lower stage in his incremental scale (time scale) f) Compulsory retirement. g) Removal or Dismissal.

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h) Where an employee has been suspended pending enquiry into his conduct under Regulation 32 of Conduct Discipline and Appeals Regulations of the Corporation and he is not fully exonerated, suspension maybe inflicted as a substantive penalty and the period of suspension be treated as non-duty period.

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Explanation : The following shall not amount to a penalty within the meaning of this regulation. i) With-holding of increment or promotion of an employee for failure to pass a departmental examination or to qualify to certain duties or subjects in accordance with the regulations or orders covering the service or post or terms of his appointment.

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ii) Stoppage of an employee at the efficiency bar in the time scale on the ground of his unfitness to cross the bar. iii) Non-promotion whether it is substantive or officiating capacity of an employee, after consideration of his case, to a service grade or post for the promotion to which he is eligible. iv) Reversion to lower service, grade or post of an employee officiating in a higher service, grade or post on the ground that he is considered, after trial, to be unsuitable for such higher service, grade or post or on administrative grounds unconnected with his conduct.

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v) Reversion to his permanent service, grade or post of an employee appointed on probation to another service grade or post during or at the end of the period of probation in accordance with the terms of his appointment or the regulations or resolutions covering probation. vi) TERMINATION OF THE SERVICES :

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a) Of an employee appointed on probation, during or at the end of the period of probation in accordance with the terms of his appointment or the regulation covering probation, or b) Of an employee in accordance with the conditions of service as laid down in the appointment order. c) Of an employee engaged under an agreement in accordance with the terms of such agreement or d) For reasons of mental or physical incapacity duly certified by a medical officer specified by the Board in that behalf.”

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11. Clause (d) of the above Regulation speaks of recovery from pay of the whole or part of any pecuniary loss caused to the Corporation by the negligence or breach of orders. A reading of the above regulation would show that though they provide for recovering the actual loss caused to the respondent Corporation, they nowhere provide for recovering double the cost of the value of the food grains or other goods lost. However, in the Circular dated 31.12.2007 para-3 of it speaks of recovery of such double the cost. This circular can be said to be inconsistent with the above Regulation 25.

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12. It may be noted that disciplinary enquiries are held in accordance with the above regulations and I am of the opinion that the authorities cannot act in deviation of the said regulations and impose higher penalties on the basis of circulars. It is well settled that when there are statutory rules, the Government cannot substitute new provisions by way of a circular in deviation of statutory rules. The same principle can be applied here even though it is not brought to my notice that the above regulations have statutory force. Even otherwise, it may be noted that recovering cost of the lost goods by insisting upon payment of double the value of such goods is against all reason and unless that is permitted by a statute which can justify the same such a punishment cannot be upheld especially when the service regulations do not provide for the same.

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13. In the above circumstances and for the aforesaid reasons, I am of the opinion that though there are no reasons to interfere with the order passed by the disciplinary authority with regard to the other punishments imposed, the decision of the disciplinary authority and as well as the appellate authority to recover double

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the cost of the goods lost from the petitioner cannot be justified and the petitioner can be made liable for single cost of the goods or the cost of goods as fixed in the impugned order itself. Hence, the impugned order only to the extent of recovering double the cost of the goods lost is set aside and it is modified accordingly while maintaining it in all other aspects. The writ petition is accordingly partly allowed. No costs.

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14. It shall be open for the respondents now to proceed to recover cost of the goods lost in terms of the impugned order and as modified above. The petitioner’s counsel says that the petitioner has paid certain amounts before and after filing of the writ petition. It is not necessary to go into this aspect. The respondents shall take into account any amounts paid by the petitioner either before or after filing of the writ petition and take steps only for recovering the balance.

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_______________________ N. RAVI SHANKAR, J

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4^th December 2012 CVRK

D. Nehemya S/o Lazarus v. The Chairman, A.P. State Civil Supplies

Case brief

What is this about?

What did the court decide?

D. Nehemya S/o Lazarus v. The Chairman, A.P. State Civil Supplies

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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