High Court
Case Details
WP(C) 4498/2012 B E F O R E HON’BLE MR. JUSTICE A.M. SAPRE,THE CHIEF JUSTICE HON’BLE MR. JUSTICE A. K. GOSWAMI (By A.M.Sapre,CJ)
Facts
This is a writ petition filed by the Union of India (Department of Communication and IT) - non applicant of OA No.232 of 2011under Article 227 of the Constituti on of India against the order dated 01.05.2010 passed by the Central Administrat ive Tribunal (for short hereinafter called The Tribunal) in aforementioned origi nal application. By impugned order, the Tribunal allowed the original application filed by the ap plicant (respondent herein) and quashed the penalty of withholding of one increm ent of the respondent for a period of one year without cumulative effect which w as imposed on him by the appointing authority for committing one misconduct. So, the short question which arises for consideration in this writ petition is w hether Tribunal was justified in allowing the original application filed by the delinquent employee? Facts of the case are short and simple. They, however, need mention in brief bel ow. The respondent is working as Senior Accounts Officer in the office of Director o f Accounts (Posts) at Silpukhuri, Guwahati. He was at the relevant time posted a t Patna. In the year 2006, he was transferred from Patna to Dibrugarh. He, there fore, submitted his transfer (TA) bill for the expenses incurred by him in this transfer from Patna to Dibrugarh. In the bill, in addition to other claims, he c laimed Rs.32,467/- towards expenses which he claimed to have incurred for carryi ng his luggage from Patna to Dibrugarh by transport etc. The question then arose as to whether an amount of Rs.32,467/- claimed by the r espondent in his TA bill was justified or not and whether it was permissible as per Rules. The department claimed that it was not justified because it was not a s per Rules. Accordingly, the department issued a memorandum dated 17.02.2010 un der Rule 16 of Central Civil Services (Classification, Control and Appeal) Rules , 1965 containing a statement of imputations of misconduct and calling upon the respondent to submit his representation within 10 days. The basic allegation is that the respondent had claimed Rs.13,198/- over and above his normal and actual entitlement on account of transportation of personal effects. The respondent su bmitted representation on 25.02.2010 against the said memorandum dated 17.02.201 0 contesting the charges. It also appears from the said representation dated 25. 02.2010 that on receipt of the memorandum dated 17.02.2010, the respondent had d eposited the sum of Rs.13,198/-. The department was, however, not satisfied with the reply and an Inquiry Officer was appointed to go into the charges. The Inqu iry Officer found him guilty of the charge framed against the respondent and on that basis, the appointing authority, concurring with the finding of Inquiry Off icer, imposed a penalty of withholding of one yearly increment without cumulativ e effect on the respondent. It is against this imposition of penalty order, the respondent felt aggrieved and filed the original application out of which this w rit petition arises before the Tribunal. The Tribunal by impugned order allowed the original application and quashed the penalty order. It is against this orde r of the Tribunal, the Department (employer) felt aggrieved and filed this writ petition. Having heard the learned counsel for the parties and on perusal of the record o f the case, we find no merit in this writ petition and hence, the impugned order passed by the Tribunal deserves to be upheld.
Legal Reasoning
This is what Tribunal held in its operative Para while quashing the penalty orde r: (cid:28) 8. before us. There is no dispute over the fact that excess amount was claimed towa rds the transfer T.A. bill in connection with applicant’s transfer from Patna to We have heard the rival submissions in the light of the material placed Dibrugarh. 9. We have noted the submissions made by Mr. Adil Ahmed, learned counsel fo r the applicant that transfer T.A. bill was prepared by dealing assistant. The s aid dealing assistant for transportation of personal effects showed truck rate i n place of train tariff in the T.A. claim because the applicant had brought his personal effects by truck only. Applicant was told at the time of his transfer t hat Railway authorities had withdrawn the facility for carrying of personal effe cts by goods train. There was a facility of carrying of personal effects by lugg age van but it was expensive and unsecured. As such, goods were carried by truck and the applicant claimed only the actual amount paid to the transporter. This actual payment was considered to be exorbitant in terms of the rate charged by t he goods train. As such, according to learned counsel, it was a case of bonafide mistake which was venial in nature. In the circumstances, penalty though minor in nature is unduly harsh, because it effects the promotion prospect of the appl icant. 10. We find force in the argument of Mr. Adil Ahmed, learned counsel for the applicant. It is the accepted tenet of law canonized in the dictum - (cid:28)DE NON MI NIMIS CURAT LEX (cid:29), law does not take into consideration trivialities. The explana tion of the applicant is that the matter was entrusted to his subordinate for pr eparing the transfer T.A. bill while doing so, he claimed the actual expenses ba sed on the rate applied by the transported. We also find force in the argument o f Mr. M.U.Ahmed, learned Addl. CGSC for the respondents that even for the mistak e of the subordinate, the applicant is vicariously liable. Mr. M.U. Ahmed also a rgued that the superior is always responsible for the acts and omissions of his subordinate. It is also important to note that the penalty proceedings are quasi criminal proceedings. As such, mens rea is an essential element for imposing pe
Decision
In the result, O.A. stands allowed. There will be no order as to cost. (cid:29) nalty. 11. We find that in the facts of the present case, claim of excess transfer T.A. can only be construed to be bonafide error. Nothing was placed before us to demonstrate that error in question was intentional and willful. As such, we do not find any good reason to sustain the penalty, as such; we exonerate the appli cant from the rigour of penalty. 12. In our considered opinion, no fault can be noticed in the impugned reasoning and the conclusion arrived at by the Tribunal while allowing the original applicati on which resulted in quashing the penalty imposed on the respondent (employee). It was held and indeed rightly that, firstly, the respondent (employee) had depo sited the excess amount of Rs.13,198/- in the treasury. Secondly, the question a s to whether he was entitled to claim the said amount or not was a matter of int erpretation of rules and due to some kind of ambiguity in the rule, this questio n had cropped up. Thirdly, the respondent had not claimed any excess amount and what was claimed was actually incurred by him and lastly, there was no malafide or dishonest intention on his part to claim the amount in question to defraud th e State and to make any kind of illegal gain out of it. We are, therefore, completely in agreement with the aforesaid reasoning of the T ribunal, which in our opinion is just, legal and proper in the facts of this cas e and hence, it does not call for any interference. In the light of foregoing discussion, which is more than sufficient to sustai n the impugned order, we find no merit in this writ petition. The petition, thus , fails and is, accordingly, dismissed. No cost.