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2011 Supreme(MP) 964
MADHYA PRADESH HIGH COURT
Rajendra Menon, J.
Ram Bhuwan Shukla - Appellant
Versus
State of Madhya Pradesh & Ors. - Respondent
Writ Petition No. : 15130 of 2005(S)
Decided On : 11-02-2011
Sheetal Dubey, Government Advocate, for the respondents., Rajneesh Gupta, learned counsel for the petitioner.
The main legal point established in the judgment is that negligence or carelessness does not necessarily constitute misconduct, and the punishment imposed should be proportionate to the nature of the act.
Headnote:
M.P. Civil Services - Challenging the order-dated 8.11.2005 Annexure P/1, whereby the appeal filed by the petitioner under Rule 23 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 has been rejected - M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 Rule 23, General Financial Rules and Instructions Rule 53(5), Rule 53(viii), Writ Petition (S) No.432/2003 (M.K. Malviya Vs. State of MP), decided on 6.11.2003 Annexure P/15, Shrinivas Sharma Vs. State of MP and others, Writ Petition No.640/1994, decided on 29.10.2008 - The court discussed the provisions of Rule 53(5) and Rule 53(viii) of the General Financial Rules and Instructions, and the judgments in Writ Petition (S) No.432/2003 and Shrinivas Sharma Vs. State of MP and others, Writ Petition No.640/1994, to highlight the responsibility of the Drawing and Disbursing Officer, breach of statutory rules, and the meaning of 'misconduct' and 'negligence or carelessness' as per legal precedents. The court's decision was influenced by the interpretation of these provisions and legal principles, leading to the modification of the punishment imposed on the petitioner.
Fact of the Case:
The petitioner, an Accountant, was suspended and penalized with compulsory retirement and recovery of a sum of money due to the loss of cash while returning from the bank. The petitioner challenged the penalty order, arguing negligence on the part of the Drawing and Disbursing Officer and contending that the punishment was too harsh.
Finding of the Court:
The court found that the Drawing and Disbursing Officer was negligent in providing adequate police protection for cash withdrawal, and the petitioner's actions, even if negligent, did not involve malafide intent or misconduct. The court concluded that the punishment of compulsory retirement was not warranted and modified the penalty imposed on the petitioner.
Issues: The issues involved the negligence of the Drawing and Disbursing Officer, the petitioner's alleged misconduct, and the appropriateness of the imposed penalty.
Ratio Decidendi: The court's decision was based on the breach of statutory rules by the Drawing and Disbursing Officer, the absence of malafide intent or misconduct on the part of the petitioner, and the interpretation of 'misconduct' and 'negligence or carelessness' as per legal precedents.
Final Decision: The petition was allowed, and the order of compulsory retirement and suspension was quashed. The recovery of the amount from the petitioner was upheld, and a substituted penalty of stoppage of one increment without cumulative effect was imposed.
JUDGMENT :
Challenging the order-dated 8.11.2005 Annexure P/1, whereby the appeal filed by the petitioner under Rule 23 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 has been rejected, petitioner has filed this writ petition. Challenge is also made to the order of punishment dated 20.7.2001 Annexure P/2, by which penalty of compulsory retirement, confirmation of the period of suspension and recovery of Rs.1,19,796=50 has been ordered against the petitioner.2. Records indicate that petitioner was holding the post of Accountant in the office of Divisional Ayurveda Officer, Rewa. On 4.7.1989, while working as Accountant, the Drawing and Disbursing Officer, one Shri Ram Sharan Shrivastava, is alleged to have directed the petitioner and one cashier Shri Rampal Pandey, to go to the bank and withdraw a sum of Rs.2,39,593=00. Petitioner is said to have gone to the Bank and while returning from the Bank it seems that the aforesaid amount was looted by certain unsocial elements from the scooter in which the petitioner and Shri Rampal Pandey were travelling, as a result of the aforesaid petitioner was suspended, a charge-sheet was issued to him and after enquiry into the matter, petitioner has been punished as indicated hereinabove. Apart from the petitioner, the cashier Shri Rampal Pandey has also been punished and the entire amount of Rs.2,39,593=00 is being recovered half from the petitioner and half from Shri Rampal Pandey.
3. Records indicate that earlier petitioner had filed an application before the State Administrative Tribunal challenging the penalty order, but the petition was disposed of directing the petitioner to file an appeal and the appellate authority to decide the appeal. The appeal having been decided, petitioner has now filed this writ petition.
4. Shri Rajneesh Gupta, learned counsel for the petitioner, inviting my attention to the General Financial Rules and Instructions, for handling of cash as contained in Annexure P/14, argued that under Rule 53(5), it is the Drawing and Disbursing Officer who is the competent authority, directing for withdrawal of cash and it is stated that if the amount to be withdrawn is more than Rs.10,000/- then a Police Escort has to be provided for disbursement of the amount. Referring to the note appended to the Rule, which reads as under:
"Note 1- The responsibility for the money entrusted to a peon or messenger is that of the drawing and disbursing officer and he is personally responsible for any loss of Government money occurring in non-observance of this rule. He should, therefore, use his discretion in selecting the person or persons and take the following precautions:-
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) When the amount to be handled exceeds Rs.10,000 the Nazir, or the Accountant, or the Cashier, as the case may be should go to Bank/Treasury/Post Office, accompanied by a police escort, as laid down in Home (Police) Department, Notification No.190- 4703-II-B(8), dated 16.1.1974."
Shri Rajneesh Gupta, learned counsel, argued that the entire fault in this matter rests on the Drawing and Disbursing Officer, who has not provided adequate police protection and has breached the statutory rule. Inspite thereof the Drawing and Disbursing Officer has been exonerated of all the charges and no punishment is imposed upon him. Accordingly, contending that the petitioner is being punished with the harsh punishment of compulsory retirement and recovery of the entire amount alongwith confirmation of suspension for no fault of his, petitioner seeks interference into the matter.
5. Inviting my attention to an order of Division Bench of this Court, in Writ Petition (S) No.432/2003 (M.K. Malviya Vs. State of MP), decided on 6.11.2003 Annexure P/15, Shri Rajneesh Gupta argued that under similar circumstances when the Drawing and Disbursing Officer was found to have been negligent in discharge of his duty, the amount of recovery has been reduced by this Court by 50% and, therefore,
