(By M.R.MEENAKSHISUNDARAM, Retired
Supervisor, SBCO, Chennai GPO)
PREAMBLE
Department of Post is a very big organisation with
multifarious functions and spread over the entire country. Due to the vast
business turnover as well the huge size of the human resources employed in the
day to day functioning, there will be some losses to the organisation at times.
Any enterprise this size will have some unscrupulous and shady characters
amidst the staff. There will be losses due to frauds, theft and burglary,
excess payments and compensation to be paid in consumer cases. Even so the loss
due to these aspects is negligible compared to the revenue accrued through
business. In Nationalised Banks million and millions of money is written off as
loss due to bad debts. But in our department not even a single paise is allowed
to be written off as the Administration is very keen in recovering the loss
from its employees whether the employee is directly responsible or not. In my
39 years of service in this Department, I came across almost all type of cases
of recoveries towards pecuniary loss and dealt with them. It is my humble
opinion that the bureaucracy usually acts in an inhuman way to recover the loss
though they have powers to write off the loss. For instance the Director of
Postal Services has power to write off any excess payments in Savings Accounts
and there is no monitory limit. In my experience I was able to convince a DPS
to accord sanction to write off some minus balances in Savings Accounts as they
were pending more than 10 years and the Chief Postmaster was trying to recover
the excess payments from the staff who has no part in the transactions. The
problem with the present staff is that they don’t want to familiarise with
necessary rules of the Branch where they work. In spite of their superior
academic qualifications, the present staff’s knowledge in departmental ruling
is dismal and so the Administration is able to capitalise on the lack of
knowledge and impose punishment of recovery without much difficulty. With
current level of shortage of staff in Post Offices and the unwanted
decentralisation of Accounting system, there is bound to be a lot of frauds as
well as short comings/lapses on the part of the operative staff due to heavy
workload. If this state of affairs continues, almost all the staffs have a
permanent column in their pay bill under recovery towards Audit Objections. The
Rule of recovery is a draconian rule though the rule was introduced with good
intentions and the Administration utilises this rule to impose recovery
unilaterally to all employees without any sympathy. First of all we have to understand
the implication of this rule and then try to tackle it. Here are some aspects
of the Rule:
1. WHAT
IS CONTRIBUTORY NEGLIGENCE?
As per Rules Contributory Negligence is an action
on the part of a Government servant that caused a pecuniary loss to the
Government. As per Rule 11(iii) of the CCS (CCA) Rules, 1965, if an act on the
part of the Government servant caused pecuniary loss to the Government, the
Government may order recovery from his pay of the whole or part of the any
pecuniary loss caused by him to the Government by negligence or breach of
orders. This rule clearly states that recovery from a Government servant can be
ordered only if he caused the loss due to his negligence or breach of orders.
For example, if a Government servant looses Government money entrusted to
him for safekeeping or disbursement, then it can be construed as negligence and
so the recovery can be ordered. If a Government servant pays out money without
proper voucher or through a defective voucher to another person, then it can be
construed as a payment made in breach of orders and the penalty of recovery can
be enforced. It is further defined in Rule 106 & 107 of P&T Manual
Volume III as follows:
(i) Rule 106 of P&T Vol. III states: (a). General Conditions: - In the case of proceedings relating to
recovery of pecuniary losses caused to the Government by negligence or breech
of orders by a Government servant, the penalty of recovery can be imposed only
when it is established that the Government servant was responsible for a
particular act or acts of negligence or breech of orders or rules and that such
negligence or breech caused the loss.
ii) Rule 107 of P&T Vol. III states: In the case of loss caused to the
Government, the competent disciplinary authority should correctly assess in a
realistic manner the contributory negligence on the part of an officer, and
while determining any omission or lapses on the part of an officer, the bearing
of such lapses on the loss considered and the extenuating circumstances in
which the duties were performed by the officer, shall be given due weight.
(iii) Manner in which charge- sheet to be framed (DG P&T letter
No. 114/176/78-Disc.II, dated 13.02.1981.)
“ It should be clearly understood by all the disciplinary authorities that
while an official can be punished for good and sufficient reasons, the penalty
of recovery can be awarded only if the lapses on his part have either led to
the commission of the fraud or misappropriation or frustrated the enquiries as
a result of which it has not been possible to locate the real culprit. It is,
therefore, obligatory that the charge sheet should be quite elaborate and
should not only indicate clearly the nature of lapses on the part of the particular
official but also indicate the Modus - operandi of the frauds and their
particulars and how it can be alleged that but for the lapses on the part of
the official, the fraud or misappropriation could be avoided or that the
successful enquiries could be made to locate the stage at which the particular
fraud had been committed by a particular person.”
2. How
this Rule’s interpretation is being done in India Post?
Whenever a pecuniary loss occurs in the Department,
the Administration immediately harps upon this Rule if the official who caused
the loss did not make good the loss. For instance, if a Branch Postmaster or a
Sub Postmaster defrauds Public money, the Administration does not take any
serious action to recover the money from him. Instead it process the case to
find out the short comings of other connected or even unconnected officials and
try to throw the blame on them to enforce recovery to make good the loss.
Though many Courts have frowned upon this type of action of the Administration,
the practice is still being followed by the Administration. If there is a fraud
at the Sub Office, the Administration looks for the lapses on the part of the
Head Office staff to fix the blame and to recover the pecuniary loss. In all
cases where the official directly responsible does not make good the loss, the
recovery of the loss is being ordered from the other officials who are not
directly responsible for the loss in violation of the Rules and orders.
3. How
the Administrative Machinery is used?
Whenever the Administration decides to impose the
recovery on the officials other than the one who committed the misconduct, the
investigating officer will be sent to obtain statements from the officials
pointing out their shortcomings and almost succeed in obtaining confession
statements. If the official is weak minded and afraid of disciplinary action,
the investigating officer/Divisional Administration play upon their weakness
and obtain their willingness to credit their alleged share of the loss. In case
of officials who are to go on retirement or voluntary retirement, the
Administration uses coercion to get their willingness to credit the share as a
precondition to accord necessary permission for retirement. The investigating
officers use threats or lull the official to confide in them to get a
confession statement. Practically all form of tactics is resorted to by the
Administration without any conscience or sympathy to achieve their goal.
4. How
the Government servant reacts to this action?
The reaction of the Government servant is first
outrage and then defeatism. Whenever an investigating officer approaches the
Government servant with some records and point out some lacunas in his day
today work and how he failed to follow certain provisions in some rule. The
Government servant immediately go on the defensive and try to explain how the
shortage of staff and overburden of work in his seat have led to such
omissions. This is exactly what the investigating officer requires. He advises
the Government servant to give his statement admitting his omissions and his
inability to detect some irregularities in a transaction while he processed it.
The Government servant gives a statement on the above lines and prays to be
excused as the omissions occurred due to heavy workload.
Only a few knowledgeable Government servants ask for time to give a
statement and demand that all the records for perusal before giving a statement
or try to get some advise from a knowledgeable person before committing
anything in writing.
5. What
is the Legal Position in these types of cases?
The CATs and High Courts normally set aside the
order of recovery if the Government servant is not directly responsible or
there is no evidence of abetting to the loss. In some cases, the CATs have
upheld the orders of recovery in spite of the fact the fraud or loss occurred
at a place other than the place of work of the Government servant. This is
mainly due to the views taken by the Administrative Member of the CATs who was
once a bureaucrat and normally rule in favour of the Government. There is no
guarantee that all cases will succeed in the Legal Forum. This is mainly due to
the fact that the Government servant has admitted his omissions initially and
so the Courts take it as a proof and refrain from interfering with the
punishments. So the entire disciplinary proceeding as well as the legal
proceedings revolves around the statement of the Government servant. In some
cases the Courts have set aside the order of recovery, but advise the
Department to impose any other minor punishment for the omission/lapse.
6.
What is the normal process in such cases?
a) Whenever a case comes to light, the Administration
access the amount of recovery that can be imposed on the Government servants
and send the investigating officers to obtain confession statements.
b) Next stage of the Contributory Negligence proceedings
is the issue of show cause notice to the Government servant asking him whether
he is willing to credit the whole/share of the pecuniary loss alleged to have
been caused due to his negligence without prejudice to any disciplinary action
likely to be taken in future. Some Government servants may opt to credit the
whole amount or in easy instalments with a hope that he/she can avoid
disciplinary proceedings. Most of the Government servants used to refuse to
credit the amount and face the disciplinary proceedings.
c) In such cases, charge sheet under Rule 16 of the CCS (CCA)
Rules, 1965 will be issued and the Government servant will be asked to submit
his representation within
10
days from the receipt of the memo of charge. Normally the Government servant
submits his representation stating the extenuating circumstances that led to
the omission on his part and request for exoneration. The Disciplinary
Authority used to observe that his representation is not satisfactory and
imposes the penalty of recovery. If the Government servant prefers an appeal,
the appeal is normally rejected as these types of cases are initially discussed
with Circle Administration and their views obtained prior to taking any action
for recovery. This is how 80% of the Contributory Negligence cases are being
processed.
7.
How to safeguard from such cases?
a)
Whenever an investigating officer approaches for a statement from a Government
servant, the official should demand to see the vouchers or records that are to
be the evidence for the disciplinary proceeding to find out to what extent his
action on such transaction to be construed as misconduct. The Government
servant has every right to ask for time to give his statement and he cannot be
forced to give a statement then and there that can be used against him. It is a
must that the Government servant takes a copy of the statement given by him
while giving such statement. If the investigating officer objects or refuse to
grant time, the Government servant can write a statement stating that he wants
to peruse the records, consult necessary rules and ask for time to give his
statement. Then the investigating officer has no other option except to grant
his request. Some investigating officers may even refuse to accept such
statement and will report to the Disciplinary Authority that the Government
servant refused to give his statement. So to avoid such traps, if the
investigating officer refuses to accept the statement, the Government servant
should send the statement to the Disciplinary Authority through proper channel
to avoid the exploitation by the investigating officer. Then he can give his
statement after two or three days. It is well settled Law that nobody should be
forced to testify against himself and refusal to give statements couldn’t be
construed as a misconduct or misbehaviour. A few know about the above fact and
so the investigating officers used to threaten the Government servant that
refusal to give a statement will be viewed seriously and punishment will be
imposed. Even most of the investigating officers and Disciplinary Authorities
are not aware of the above fact. So the statement is the most vital factor in a
disciplinary proceeding and the Government servant should be very careful while
a statement is recorded from him. The following points though not exhaustive
will help in giving a proper statement.
i)
First ensure that you are on duty on the date/dates of the alleged incidents.
ii)
Peruse the documents that are the basis of the allegation and find out whether
the
same are handled by you.
iii)
Check the necessary rules/procedures from the Departmental Volumes and find out
the extent of your negligence, if any.
iv)
Never write a statement as per the dictation of an investigating officer even
if you trust him implicitly.
v)
Always consult a knowledgeable person before giving a statement and act on his
advise to avoid any future complication.
vi)
Never trust the Administration in these matters, as it will only look after its
own interest.
vii)
Always take notes on the evidences shown to you and take a copy of your
statement.
b) Whenever a memo of charge is issued under Rule 16 of CCS (CCA) rules,
1965 to a Government servant, he can ask for perusal of documents that are
relied by the Disciplinary Authority to sustain the allegation under Rule 16
(1)(b) of CCS (CCA) rules, 1965 and normally this request will be accepted by
the Disciplinary Authority. During perusal take notes from the evidences to
include the same in your representation against the allegation. If the
Disciplinary Authority is relying on the statements of other persons , request
for an oral inquiry under Rule 16 (1)(b) of CCS (CCA) rules, 1965 and the
Disciplinary Authority will reject the request stating that he does not
consider an inquiry necessary in the case as he is vested with discretionary
powers. Though the request is refused, this action on the part of the
Government servant will help him when he approaches the CAT for redressal.
Whenever a memo of charge is received, it is always advisable to consult a
knowledgeable person before submitting a reply. In all cases, the recovery is
unavoidable, as the Disciplinary Authority has already made up its mind to
impose the recovery. But submission of a proper representation against the
allegation will be helpful when the Government servant approaches the CAT for
remedy. If you are convinced that the recovery is unjust, it is better to take
the help of a knowledgeable person in preparing your representation to the memo
of charge or your appeal as these two will be the deciding factor in the Court
of Law.
8.
TYPES OF CASES UNDER THIS RULE
a)
Savings Bank frauds at Branch Post Office or Sub Post Office:
The HO SB Ledger Assistant and APM (SB) are the victims. Non-verification
of
signature between the SB3 and SB7, non-checking of BAT or DLT or
non-furnishing of necessary certificates in the proper format and non-detection
of any alteration or correction made in the SB7 and not calling for the Pass
Book for entry of Interest from the SO are some of the points on which the
allegation is based.
b) Savings
Certificates frauds at Sub Post Office:
The HO SB Ledger Assistant and APM (SB) are usually
charged with non-maintenance or improper maintenance of the HO Stock Register
for Certificates supplied to the SOs. Failure to check whether the certificates
were properly signed or payment to messenger made on proper authorisation are
some of the points of allegation.
c) Transit
of Cash between SO and HO:
The Mail Bag containing cash and valuables is sent
from HO to SO through Bus and there is always likelihood of loss of the bag or
pilfering of the bag during transit. In such cases the case is reported to
Police and the loss of money recovered from the SPM or Treasurer of SO/HO under
some pretext that the weight of the bag & seal was not checked or the bag
was not opened before the SPM etc.
d)
Excess payments or Minus Balance in SB Accounts:
The improper maintenance of list of clearance of cheques and
non-verification of
balance in the
Account before allowing the cheque for payment results in Excess payments or
Minus Balance in SB Accounts.
e)
Withdrawal of cash by the SPM from the Bank and non-accounting of the same: The
PA and the APM of the Accounts Branch at HO entrusted with the work of
scroll
maintenance charged with the allegation that they failed to watch the serial
No. of the cheque and non-tallying the scroll received from the bank every
month.
f)
Theft/Burglary in Post Offices
The SPM/Treasurer will be the victims. The basis for allegation will be
non-
occupation of quarters provided or non-checking of locking arrangement on
the doors of the PO or the Cash Chest etc. There is a Rule that says that the
SPM provided with quarters should sleep in the Office as if he is a security
guard of the PO. This is the most ridiculous rule as the SPM is also a normal
human being and has his own domestic obligations to his family. I defended a
case of burglary recently in which the investigating officer obtained
contradictory statement from the SPM to implicate the Treasurer in Police
Station and force him to credit the entire loss. The SPM thought that he was
clever. But what happened was the SPM was proceeded on the verge of retirement
and he was forced to credit half of the loss before his date of retirement. It
came to light during another burglary in the same PO, the duplicate keys of the
Cash Chest that are ought to be in the custody of the SSPOs was used during the
burglaries. It is evident from the above fact that somebody in the Divisional
Office colluded with the criminal element and burgled the PO. Neither the then
SSPOs or ASPOs or the PA responsible for safe keeping of the duplicate keys
were touched and the SPM and Treasurer have been made scapegoats for the
burglary.
g) Compensation
ordered by Consumer Courts:
The Consumer Courts do not accept the rules made by
the Government of India and in all cases order compensation to the Public for
deficiency of service. Normally this amount should be bourn by the department.
But in our department, the amount of compensation ordered is recovered from the
officials who have processed the transaction as per rules even though there is
no wilful deficiency on their part. I heard a rumour that in a PLI claim case
the court ordered compensation and the amount has to be recovered from the
DPS/APMG and the amount was drawn from Welfare Fund and paid to the
complainant. If this can be done for a highly paid officer, what harm in paying
the compensation from Welfare Fund in case of low paid officials who were not
actually at fault and who is also a member of the fund.
9. Here are some of the Judgements:
RECOVERY
1.
(A) Post Office Savings bank manual Volume-I- Rule 9(1), 31(2)(iii), 48(ii),
92(2) and 120(6)-Recovery-Charge of failure to detect the on going fraud at the
relevant time by other staff members which resulted in pecuniary loss to Govt.
- None of the applicants was charged with misappropriating any amount nor it
was alleged that their integrity was doubtful-Even no detailed enquiry was
held-Order of recovery of loss along with interest quashed.
(B) Central Civil Services (Classification, Control
and Appeal) Rules, 1965 - Rule 11(3)--Recovery-Unless the persons concerned is
directly responsible for misappropriating any amount or for causing any
pecuniary loss to the Govt.-- No recovery can be made from him.
(Smt. Kalpana Shinde and ors v Union of India - OA
Nos. 344/2003, 353/03, 354/03, 355/03 & 357/03-decided on 22.11.2004- CAT,
Jabalpur Bench (Circuit at Gwalior) -ATJ 2005(1)-45)
2. R.Balakrishnan v Union of India & others - OA 1496 of 1992 decided
on 02.12.93 - CAT, Madras Bench - 166 Swamy's Case Law Digest 1994 I.
"Unless and until the quantum of the pecuniary loss caused by
negligence is properly assessed and quantified, there can be no punishment of
recovery from pay".
EPILOGUE
Till the year 1985, the Appellate Authorities have
sympathetically considered the appeal petitions and used to reduce the amount
of recovery considerably. I had the satisfaction of some of the punishment of
recoveries set aside by Member (P) while deciding the Revision Petition. The
power of revision is now transferred to Chief PMGs and all the Revision
Petitions are being rejected now without any mercy as the Disciplinary Authority
and Appellate Authority have direct access to the Revising Authority to exert
their influence to uphold their decisions. An official can be punished for his
fault but he should not be made to suffer for the misconduct of another person.
It should be the endeavour of all Trade Unions to bring in necessary changes to
this unscrupulous and inhuman imposition of punishment upon the Government
servants who are not directly responsible for the loss. I want to enlighten
this aspect of the Disciplinary Proceedings to all the Government servants and
errors, if any, is my sole responsibility. I will be happy to receive your
valuable comments (whether negative or positive) and suggestions for
improvement of this thesis.
( Source: SA Post)
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