Union of India @APPELLANT@Hash Dinesh Kumar Asthana

Heard learned counsel for the parties.

Challenge in D.B.Civil Writ Petitions No.12744/2011 and 7067/2012 is to an order dated 19.05.2011 deciding O.A. No.28/2007 filed by Dinesh

Kumar Asthana.

It is apparent that Union of India as also Dinesh Kumar Asthana are aggrieved by the order in question.

Challenge in D.B. Civil Writ Petition No.11163/2012 is to a subsequent order dated 12.12.2011 dismissing the O.A. No.191/2008 filed by Dinesh

Kumar Asthana.

Factual background being the same is the reason why, though two different orders are in challenge, the three writ petitions are being disposed of by

a singular order.

Dinesh Kumar Asthana was appointed as a Permanent Way Inspector and at the time when the dispute arose was posted as a Safety Officer,

Bikaner. He was visited with an order dated 17.11.2006 directing recovery of the money specified in the order from his salary on the ground that

shortage of store was detected as per stock sheet dated 06.01.2004.

Case of Dinesh Kumar Asthana was that he joined duties on 12.04.2002 at Ellnabad NWR and his predecessor had not handed over the charge to

him. No stock verification was done. He requested the authorities on 28.05.2002 that his predecessor be directed to hand over the charge to him.

Before joint stock verification could be effected there was a vigilance inspection between 09.07.2003 to 19.07.2003 in which shortage in respect of 21

items amounting to ₹79.59 Lacs was detected. He was issued a charge sheet for a major penalty on 09.05.2005. Proceedings pursuant to the charge

sheet were pending when vide impugned communication recovery was effected by deducting monthly sum from his salary ₹9,000/- per month.

Apart from the factual aspect pleaded by him concerning his predecessor in interest not handed over the charge and joint stock verification not

being done when he took over the charge he raise the ground of recovery being in the nature of penalty and since on the same allegation charge-sheet

was pending, recovery could not be effected as pleaded by him.

In reply to the original application the department took the stand that inventory had been prepared when Dinesh Kumar Asthana assumed the

charge on 21.03.2002 for which his predecessor in interest was granted one month joining time at the place where the predecessor in interest was

transferred and this period was to be used for joint stock verification. It was pleaded that when the vigilance team investigated, the stock deficiencies

were found.

The Railway Authority justified the recovery action by relying upon the Indian Railway Code for the Store Department (Volume II), as per which

price of missing articles can be recovered from the defaulting parties for purpose of reconciliation of the account.

With respect to the factual aspect of the controversy, deciding O.A.No.28/2007 the tribunal held that having gone through the copy of the vigilance

check memo pertaining to the vigilance check conducted in the month of July 2003, it was apparent that for certain items, far from shortage, there was

excess items in the store and on the other hand for some items there was a shortage. For 21 short items value was ₹79.59 Lacs and for the excess

stock the value was ₹99.81 Lacs. The tribunal observed that prima facie stock were ₹21 Lacs was in excess. The tribunal therefore opined that it

was obviously a case of negligence and mis-handling of the stock and not defalcation and misappropriation of the stock.

The tribunal thereafter observed in paragraph 13 that Dinesh Kumar Asthana was certainly guilty of gross negligence in maintenance of the

record. By the time the tribunal decided the matter it noted that in the disciplinary proceedings penalty of reducing him to a lower salary grade had

been passed. The tribunal therefore held that in respect of the shortage of stock in sum of ₹79.59 Lacs recovery could not be made.

Dinesh Kumar Asthana is aggrieved by the observation in paragraph 13 of the order dated 19.05.2011 for the reason O.A.No.191/2008 filed by

him challenging the penalty levied has been dispatched to the boundary by a short and the cryptic order dated 12.12.2011 observing that in view of the

finding written in paragraph 13 of the order dated 19.05.2011, since it has already been held that he was guilty of gross negligence in maintaining the

record, the penalty was justified.

The narrative of the facts, the reasons and the conclusions by the Central Administrative Tribunal in its order dated 19.05.2011 which we have

extracted hereinabove would show that the tribunal did not decided the core fact which was pleaded by Dinesh Kumar Asthana in O.A.No.28/2007

i.e. that when he assumed the charge of the store the predecessor in interest had not handed over the charge to him and thus he would not be

responsible for the discrepancies in the stock register pertaining to the period his predecessor in interest was in charge of the store.

We find that in its decision the tribunal gave a finding in his favour that deduction by way of penalty could not be made till the departmental enquiry

was completed. Observations and findings in paragraph 13 are springing as a rabbit out of the hat and thus we hold that said observations i.e. in

paragraph 13 of the order dated 19.05.2011 need to be expunged. Ordered accordingly.

The consequence thereof would be the subsequent order dated 12.12.2011 also has to be quashed.

As regards the writ petition filed by the Union of India, from the facts noted hereinabove it is apparent that on the same allegation a charge sheet

being issued against Dinesh Kumar Asthana, the recovery could thus not have been effected by an administrative order.

To bring curtains down D.B.Civil Writ Petition No.12744/2011 filed by Union of India is dismissed. D.B.Civil Writ Petition No.7067/2012 filed by

Dinesh Kumar Asthana is allowed. Observations and findings in paragraph 13 of the order dated 19.05.2011 dismissing of O.A.No.28/2007 are

quashed. But the direction issued in the order in favour of Dinesh Kumar Asthana is maintained. D.B.Civil Writ Petition No.11163/2012 filed by

Dinesh Kumar Asthana is disposed of setting aside the order dated 12.12.2011. O.A.No.191/2008 filed by him is restored with a direction that the

same shall be decided in accordance with law, keeping in view the present decision.

Needless to state, if the order levying penalty upon Dinesh Kumar Asthana is sustained then the recovery of the loss caused can be affected.