Judgment:
Mr. N.D. Dayal, Member(A)
The applicant in this O.A. is seeking the following reliefs:-
(a) To quash and set aside the order No A/24321/199/OS-8C(ii) dated 29.1.2009 of Revisionary Authority by which Recovery of Rs.59,331/- from pay and allowances of the applicant has been effected.
To pass such an order and further directions which Hon’ble Tribunal may feel fit and proper.
2. The respondents have opposed the claim of the applicant. A copy of the counter reply filed by them had already been received as informed by learned counsel for the applicant. Copies of the same were produced in Court and taken on record.
3. We have heard the learned counsel for both sides and perused the pleadings.
4. The applicant submits that he is a Civilian Store Keeper and presently serving in COD Delhi Cantt. He has an unblemished service of nearly 30 years. It so happened that as per issue voucher No. GS-113189 dated 07.12.1988 quantity 13 of Member Shoes and free wheel Cat part No. 2520-001318 were issued to OSS 505 Army Base Workshop, Delhi Cantt. but were not collected and were lying in sub-depot No. 1 un-issued till 22.01.1994 when they were transferred in Receipt Marshalling Area (RMA). The applicant was discharging his duties from July 1992 to 30.04.1999 in RMA of No. 1 Sub Depot. It is submitted that during stock taking in 1995-96 these items were found not posted in bin card but were added on the ledger balance and already merged into the stock on the ground. They were valued at Rs. 54,683/- and regularized by the voucher at Annexure A-3 on 07.07.2003. It is stated that the applicant was promoted as Senior Store Superintendent in 2004.
5. A Court of Inquiry was convened in mid 2004 to look into deficiency of these items and gave its findings as indicated at page 19 of the OA.The applicant states that the Inquiry was not conducted properly and no stock was checked nor witnesses examined/statements of concerned persons taken. A perusal of the findings of the Court of Inquiry show that the applicant had carried out the checking of these items and signed the correctness of the quantity 13 and affixed his signature on the issue voucher, taking the stores on charge, but could not prove their handing over to Mr. J.N. Kapoor as asserted by him. Mr. J.N. Kapoor later expired.
6. A perusal of the questions put by the Court of inquiry as at page 20 of the OA reveals that the applicant had said that he had taken the consent of Mr. J.N. Kapoor in the issue register. But the register could not be produced since 10 years had passed. It was further stated by the applicant that no acknowledgement was taken on the Binning Slips from Mr. J.N. Kapoor as he fell ill and was absent. The applicant did not remember who was officiating in his absence. He did approach the persons in Shed No. 163 to expedite signature in receipt of stores, but he did not obtain the signature of any person there. It is seen that the Court of Inquiry expressed an opinion as at page 21 of the O.A. that the applicant was guilty of not obtaining the signature/acknowledgement of the stores handed over. Further, it was opined that strict disciplinary action should be initiated against him for loss of quantity 13 of the items in question.
7. A charge sheet under Rule 16 of the CCS CCA Rules, 1965 was issued to the applicant on 04.01.2005. The article of charge against the applicant was as under:-
NEGLIGENCY OF DUTY
In that Sh kk Tikoo while performing the duty of Cell Checker during Jul 92 to Apr 99 in RMA of No 1SD, it is found that qty 13 of item Pt No 2520-001318 Member Shoe and Free Wheel was received by Sh Tikoo vide DRS No 1SD 3277 dt 22 Jan 94. The same stores was not posted in Bin Card. It is also found you have not obtained signature/acknowledgement of stores at the time of handing over the stores to shed in charge 168, which shows negligency of duty.
By the above act Sh KK Tikoo has exhibited the conduct rules unbecoming of a Govt servant in violation of Para 3 of CCS(CCA) Rules, 1965.
Along with the same, a statement of imputation of misconduct as well as documents by which the charge was proposed to be supported were served upon the applicant. The applicant submitted a representation and by order dated 22.03.2005 the Adm Officer found him guilty and warned him to be more careful in future.
8. The applicant was, thereafter, apprised by endorsement of letter dated 29.10.2005, which the Adm Officer wrote to the Peers Officer (CIF), that the Court of Inquiry conducted for loss of Qty-13 had found the applicant guilty and as per audit requirement sanction of Comdnt was obtained by DAO Branch for regularization of the loss amount. Therefore, it was requested that recovery be arranged of the cost of stores as per rules. It is submitted by the applicant that on his representation against orders of recovery, the Appellate Authority, Officer In-Charge Records, passed orders dated 15.12.2006 upholding recovery of Rs. 59,331/- against the applicant. The applicant complains that an appeal was preferred to the Revisionary Authority but it was rejected by order dated 29.01.2009 (Annexure A-1) without application of mind or giving reasons as was also the case with the order passed by the Appellate Authority earlier.
9. The learned counsel for the applicant has asserted that neither in the Court of Inquiry proceedings nor in the charge sheet has it been mentioned that the stores were missing or deficient on the ground. It is only mentioned that the applicant failed to take signatures, which implies that the stores are not missing on the ground and only a paper transaction is lacking. This was a minor lapse and a written warning had already been given and case closed by Disciplinary Authority. As there was no loss there could be no recovery. The orders for recovery were made without any notice. The items in question were heavy at 7 kg. each and could not have been taken away in the pockets also because of the security arrangements in the COD. No inquiry was conducted and the CCS (CCA) Rules, 1965 have been violated as two punishments have been awarded for the same lapse or offence and proposed penalty was not communicated by Appellate Authority in advance contrary to requirement of Rule 29 of these Rules.
10. By reference to the counter reply, the learned counsel for respondents has pointed out that the applicant submitted his representation against recovery to the Appellate Authority. It is clarified that warning does not come under the ambit of punishment as per CCS CCA Rules, 1965 and therefore recovery order is tenable. The action taken by the Appellate Authority cannot be faulted nor the order passed by the Revisionary Authority as both are detailed and speaking orders issued with due application of mind not only to the facts of the case and material on record but also the representation and appeal made by the applicant.
11. It is further argued that the documents at Annexure A-10 to the OA would show that the 18 items were declared surplus in a separate matter relating to the year 1985 and not relevant to the present case. The store is merged in the stock after preparation of Binning Slip and Receipt Voucher and after posting in Bin Card. Quantity 13 of the items were not found on the ground during the stocktaking in 1995-96 which was the responsibility of the store holder. It is emphasized that the applicant was responsible for checking the ledger as well as tallying the Account Card, Bin Card and ground balance. The discrepancy could not be resolved even after reconciliation of record. The adjustment of the amount of loss was taken up as per the rules and instructions, a copy of which has been produced. These indicate that on discovery of loss the stock would be verified and reported whereupon investigation will be held, inter alia, to allocate the blame in the case of negligence after holding a Court of Inquiry and loss statements will be prepared to adjust the loss in the stock record. The applicant was promoted before the disciplinary action was initiated against him. One Sh. Brij Bhushan who was on duty as Shed 1/C from August 2001 has also given a statement in the Court of Inquiry that he had not received the items or the binning against receipt.
12. A perusal of the document enclosed with the OA at page 24 shows that on 30.05.2003 a team of three officers went into the deficiencies in the stock and calculated that quantity 13 of the items in question was not posted on Bin Card and were found deficient on the ground after physical checking. This was noticed by the Court of Inquiry, which was convened later on. It has not been disputed that the applicant appeared before the Court of Inquiry which is evident from his statement on record at page-18 of the OA. The Court of Inquiry in its findings has recorded that a deficiency of quantity 13 was reflected in the stock taking carried out in 1995-96 amounting to Rs. 54,683/-. The article of charge states that the applicant received the items in question which were not posted in Bin Card and no signature or acknowledgement was obtained at the time of handing over, which shows negligence of duty and unbecoming conduct. The proceedings of the Court of Inquiry, which were included in the list of documents to support the charge, indicated that the applicant received the items and could not produce proof of having handed them over. It is difficult to accept a plea that the applicant would not be liable to make good the deficiency which was a loss to government. Mere allegations against the Court of Inquiry would not suffice.
13. It is seen that a warning is not one of the prescribed statutory penalties in Rule 11 of the CCS(CCA) Rules, 1965. As such, it cannot be said that the applicant has been punished twice. The order of 29.10.2005 does not show that the Adm Officer has revised or modified his earlier orders. He has asked that recovery be made as per rules to regularize the loss. This is not impermissible as per G.O.I. instructions under Rule 11 of CCS(CCA) Rules, 1965. The audit function within an organization is a part of the decision making process especially in matters of finance and accounts and if its views are accepted and acted upon by the administrative authorities, it could not be said to be an extraneous intervention that would vitiate the action taken. The applicant has admitted that on his representation against the orders of recovery of the cost of items, Officer In charge records, the Appellate Authority, issued orders dated 15.12.2006 upholding the same and rejected the appeal. However, no copy of such representation or any other protests made at this stage of the proceedings against the grievances mentioned in the OA have been placed on record. The enclosures with order dated 29.10.2005 and action taken thereafter by the Peers Officer (CIF) are also not available. We are therefore not aware as to what other information was communicated to the applicant regarding the amount involved etc. If wrong rules are quoted by the Appellate Authority it would not be fatal if provisions exist in the Rules to support action taken. No inquiry was necessary as it was not a matter of imposition or enhancement to any major penalty. The representation was considered and recovery upheld. A copy of Review Petition dated 04.01.2007 challenging the appellate orders is annexed with the OA. The orders passed earlier stand merged with those of the Revisionary Authority dated 29.01.2009 which is perhaps why the applicant has not sought the quashing of the orders of the Disciplinary and Appellate authorities in the relief sought by him. The order of the Revisionary Authority is a reasoned and speaking order and discusses the grounds advanced by the applicant before concluding that the petitions were devoid of merit. The scope of judicial review is limited. The Court does not sit in appeal over the orders passed by the Executive Authorities and the standard of proof required is restricted to that of preponderance of probability.
14. In the above situation, we are not satisfied that the applicant has made out sufficient grounds for intervention on his behalf. The O.A. is therefore dismissed. No costs.