DRACONIAN RULE OF CONTRIBUTORY NEGLIGENCE
A DAMOCLES SWORD
(By M.R.MEENAKSHISUNDARAM, Retired Supervisor, SBCO, Chennai GPO)
PREAMBLE
Department of Post is a very big organization 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 organization 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 Nationalized 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 familiarize 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 capitalize 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 decentralization 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 utilizes 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?
5. What is the Legal Position in these types of 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 misbehavior. 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 authorization 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 rumor 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 endeavor 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.
AIPSBCOEA Thanks to Mr M.R.MEENAKSHISUNDARAM, Retired Supervisor,
SBCO, Chennai GPO for this Article.
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