# Sushil Kumar Bajpai v. Union of India & Ors

- **Citation:** (2023) 4 ILRA 256
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-15
- **Case number:** Writ-A No. 38165 of 2011
- **Bench:** Rajiv Joshi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sushil-kumar-bajpai-v-union-of-india-ors-50100
- **Pages:** 5

## Headnote

A. Civil Law - Public Accountant Default
Act, 1850-Sections 2 & 4-Central Civil
Services (Conduct) Rules, 1964-Rules
3(I)(ii)-Central
Civil
Services
(Classification,
Control
and
Appeal)
Rules, 1965-Rules 14 & 16-Recovery of
amount-the petitioner had given a cash
advance of Rs. 8,01,000 even without
taking any initial of Assistant Post
Master-At relevant time petitioner was
working as Postal Assistant-He is not a
public accountant as defined in section 2
of
the
Act
of
1850-Proceeding
of
recovery cannot be initiated against
petitioner unless and until a liability to
that effect of the loss of Government
amount is fixed upon him-Act of 1850
also has been repealed by Central
Government on 02.09.2019-Impugned
order quashed.(Para 1 to 27)

The petition is allowed. (E-6)

List of Cases cited:

## Text

256 INDIAN LAW REPORTS ALLAHABAD SERIES
Government of U.P. to continue the
petitioners
with
the
B.T.C.
Training
Course- 2012, if the same is surviving.
----------
(2023) 4 ILRA 256
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.03.2023

BEFORE

THE HON'BLE RAJIV JOSHI, J.

Writ-A No. 38165 of 2011

Sushil Kumar Bajpai ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Satya Prakash Pandey, Sri Rajeev
Trivedi, Sri Shashi Kant Shukla

Counsel for the Respondents:
A.S.G.I., C.S.C. (2011/33987), Sri Praveen
Shukla, Sri Saumitra Singh

A. Civil Law - Public Accountant Default
Act, 1850-Sections 2 & 4-Central Civil
Services (Conduct) Rules, 1964-Rules
3(I)(ii)-Central
Civil
Services
(Classification,
Control
and
Appeal)
Rules, 1965-Rules 14 & 16-Recovery of
amount-the petitioner had given a cash
advance of Rs. 8,01,000 even without
taking any initial of Assistant Post
Master-At relevant time petitioner was
working as Postal Assistant-He is not a
public accountant as defined in section 2
of
the
Act
of
1850-Proceeding
of
recovery cannot be initiated against
petitioner unless and until a liability to
that effect of the loss of Government
amount is fixed upon him-Act of 1850
also has been repealed by Central
Government on 02.09.2019-Impugned
order quashed.(Para 1 to 27)

The petition is allowed. (E-6)

List of Cases cited:
1. Smt. Madhubala Bharti Vs St. of U.P. & ors.,
W.P. No. 40574 of 2001

2. Girija Dayal Srivastava Vs St. of U.P. (1987)
UPLBEC 1121
(Delivered by Hon'ble Rajiv Joshi, J.)

1. Heard Shri Shashi Kant Shukla,
learned Counsel for the petitioner and Shri
Saumitra Singh, Senior Panel Counsel for
Union of India/respondents.

2. The instant writ petition under
Article 226 of the Constitution of India has
been filed against the impugned order dated
06.05.2011 passed by the respondent no.4,
Chief Post Master, Kanpur, District Kanpur
Nagar whereby a sum of Rs.7,57,500/- has
been directed to be recovered from the
petitioner as an arrears of land revenue in
exercise of power under Public Accountant
Default Act, 1850.

3. It reflects from the record that the
petitioner joined on the post of Postal
Assistant at Head Post Office, Banda on
24.09.1983.
Subsequently,
he
was
transferred to Kanpur on the same post. On
17.03.2003 while he was performing his
duties as Postal Assistant in the office of
Treasurer, a loss of Rs.8,00,000/- occurred
in the department due to the irresponsibility
committed by one Shailendra Kumar Dixit,
who was working at that time as Postal
Assistant N.S.C., Discharge Counter, Head
Post Office, Kanpur Nagar.

4. A first information report was
lodged
against
unknown
persons
on
17.03.2003, thereafter, the departmental
proceeding
was
initiated
against
the
petitioner and he was served with a chargesheet
on
18.07.2003
issued
by
the
respondent no.4 with the allegation that the
petitioner has given a cash advance of
4 All. Sushil Kumar Bajpai Vs. Union of India & Ors.
257
Rs.8,01,000/- to Shailendra Kumar Dixit,
Postal Assistant N.S.C. Discharge Counter,
Kanpur Nagar without taking any initial of
the Assistant Post Master namely Sri S.S.
Trivedi
and
as
such
he
acted
in
contravention of Rule 3 (I) (ii) of CCS
(Conduct) Rules, 1964.

5. The petitioner submitted his reply
on 13.08.2003 denying the charges levelled
against him and further stated that the
amount in dispute was given to Shailendra
Kumar Dixit with the consent of Assistant
Post Master, Shri S.S. Trivedi, who made
his initial on the cash register certifying
therein that the amount has been received
by Shailenra Kumar Dixit and as such two
charges made against the petitioner are
frivolous and are liable to be dropped.

6. Subsequently, the statement of
Shri S.S. Trivedi, Assistant Post Master
was recorded by the inquiry officer and
the disciplinary authority, respondent
no.4 passed the order dated 15.11.2003
whereby
imposed
recovery
of
Rs.88,032/- against the petitioner with
immediate
effect
in
42
equal
installments @ Rs.2,096/- per month
from his salary.

7. Being aggrieved by order dated
15.11.2003, the petitioner filed an
appeal before the respondent no.3,
Director
Postal
Services,
Kanpur
Region, Kanpur on 29.11.2003, which
was not decided by the appellate
authority
despite
several
reminders
given by the petitioner. Ultimately, the
petitioner filed an Original Application
being Original Application No.92 of
2004 (S.K. Bajpai Vs. Union of India
and others) against the order dated
15.11.2003
before
the
Central
Administrative
Tribunal,
and
the
Central Administrative Tribunal vide
order dated 09.02.2004 stayed the
operation of the said order till disposal
of the appeal.

8. The respondent no.3 during
pendency of the Original Application
before
the
Central
Administrative
Tribunal had allowed the appeal filed
by the petitioner vide order dated
18/29.06.2004 by setting aside the
recovery
of
Rs.88,032/-
with
the
direction that a fresh charge-sheet be
issued by the disciplinary authority
against the petitioner.

9. The disciplinary authority
neither issued any charge-sheet nor
initiated disciplinary proceeding as per
Rule 16 of C.C.S.(C.A.A.) Rules, 1965
(hereinafter
referred
as
"Rules
of
1965") in pursuance of the direction of
appellate
authority
dated
18/29.06.2004.

10. Subsequently, the respondent no.4
issued the order dated 09.04.2005 directing
recovery
of
Rs.8,00,000/-
from
the
petitioner as arrears of land revenue. The
respondent no.4 has also passed two
separate orders dated 08.04.2005 and
8/9.04.2005 against Shailendra Kumar
Dixit and Shri S.S. Trivedi for recovery of
Rs.8,00,000/- each meaning thereby the
respondent no.4 had issued recovery of
Rs.24,00,000 against the petitioner and two
other persons working in the Post Office.

11.
 The
petitioner
was
again
compelled to file the Original Application
being Original Application No.511 of 2005
challenging the order dated 09.04.2005
before the Central Administrative Tribunal
and the Central Administrative Tribunal
while entertaining the Original Application
258 INDIAN LAW REPORTS ALLAHABAD SERIES
vide order dated 04.05.2005 stayed the
recovery proceeding against the petitioner.
Thereafter, a fresh charge-sheet was issued
by the disciplinary authority against the
petitioner under Rule 14 of Rules of 1965
with regard to the earlier charges on
07.05.2005, which was replied by the
petitioner on the same day i.e 07.05.2005
denying the entire charges.

12. The inquiry officer was appointed,
who submitted his report on 26.05.2008
with the finding that the charges levelled
against the petitioner were not proved. The
disciplinary authority i.e. respondent no.4
did not agree with the conclusion of inquiry
officer, issued a letter dated 09.06.2008
regarding disagreement with the inquiry
report and invited representation from the
petitioner.

13. In reply thereto, the petitioner
filed his representation dated 12.07.2008,
the respondent no.4 without considering the
representation as well as finding recorded
by the inquiry officer passed the order
dated 19.07.2008 imposing the recovery of
Rs.2,50,000/- from the salary of the
petitioner
in
100
equal
monthly
installments.

14. The petitioner aggrieved by the
order dated 19.07.2008, filed an appeal
under Rule 23 of Rules of 1965 before the
respondent no.3, which was rejected vide
order dated 20.11.2008 affirming the
punishment order dated 19.07.2008.

15. Being aggrieved by the order
dated 20.11.2008 the petitioner filed
Original Application No.1314 of 2008
(Sushil Kumar Bajpai Vs. Union of India
and
others)
before
the
Central
Administrative Tribunal for quashing the
order dated 19.07.2008 and 20.11.2008
passed by the respondent nos.4 & 3
respectively, which was disposed of finally
vide order dated 23.12.2008 setting aside
the order dated 20.11.2008 passed by the
respondent no.3 and the petitioner was
directed to file complete copy of the
Original Application with all annexures and
additional appeal, the respondent no.3 was
also directed to decide the the appeal by a
reasoned and speaking order in accordance
with land and relevant rules on the subject
and stayed the recovery proceeding against
the petitioner till disposal of the appeal.

16. Thereafter, the appellate authority
vide order dated 23.03.2009 modified the
punishment of recovery of Rs.2,50,000/- as
imposed vide order dated 19.07.2008 to
Rs.1,50,000/-.
The
petitioner
again
challenged the said order dated 23.03.2009
passed by the appellate authority vide
Original Application No.474 of 2009
before the Central Administrative Tribunal,
which was finally disposed of vide order
dated 15.05.2009 setting aside the order
dated 23.03.2009 passed by the appellate
authority and remitted the matter back to
reconsider the entire case in accordance
with law and pass a reasoned and speaking
order within a period of three months and
further stayed the recovery against the
petitioner during the pendency of the
appeal.

17. The appellate authority, thereafter,
rejected the appeal vide order dated
14.07.2009 and affirmed the order dated
19.07.2008 directing recovery of Rs.1,
50,000/- as the petitioner was held
responsible for the loss to the extent of
Rs.1,50,000/- and the said amount is being
recovered from the salary of the petitioner.

18. The petitioner again filed Original
Application No.881 of 2009 before the
4 All. Sushil Kumar Bajpai Vs. Union of India & Ors.
259
Central
Administrative
Tribunal
challenging the order dated 19.07.2008 as
well as the order dated 14.07.2009 passed
by the appellate/disciplinary authority,
which is pending before the Tribunal.

19. From the record, it is apparent that
the amount, which was directed to be
recovered from the salary of the petitioner
to the extent of Rs.1,50,000/- has been
recovered and the Original Application
No.511
of
2005
was
dismissed
as
withdrawn vide order dated 22.12.2010 and
during
pendency
of
the
Original
Application No.881 of 2009 the impugned
order dated 06.05.2011 has been passed
while exercising the power under the
provisions of Section 2 & 4 of Public
Accountant Default Act, 1850 (Act No.12
of
1850)
whereby
an
amount
of
Rs.7,57,500/- has been directed to be
recovered from the petitioner as an arrears
of land revenue after deducting the amount
of Rs.1,50,000/- which has already been
recovered from the total loss to the extent
of
Rs.8,00,000/-.
The
order
dated
06.05.2011 passed by the respondent no.4
is impugned in the writ petition.

20. Learned Counsel for the petitioner
submits that the disciplinary proceeding
against the petitioner was initiated and
departmental inquiry was held in which the
charges against the petitioner has not been
substantiated, thereafter, the fresh inquiry
has not been initiated by the department in
pursuance
of
the
order
of
Central
Administrative Tribunal and an amount of
Rs.7,57,500/- is sought to be recovered
from the petitioner by the impugned order.

21. Learned Counsel for the petitioner
further submits that the amount in question,
which is directed to be recovered is not an
amount and kind of security as per Section
2 of the Public Accountant Default Act,
1850 and the petitioner is neither a Official
Assignee or Trustee, or as Sarbarakar, is
entrusted with the receipt, custody or
control of any moneys or securities for
money. The impugned recovery under the
Public Accountant Default Act, 1850 is
absolutely illegal and the said amount
cannot be recovered from the petitioner as
an arrears of land revenue.

22. Learned Counsel for the petitioner
again submits that before passing of the
impugned order no opportunity of any
hearing has been afforded to the petitioner.

23. In support of his argument learned
Counsel for the petitioner placed reliance
upon the division Bench judgement of this
Court in the case of Smt. Madhubala
Bharti Vs. State of U.P. and others
passed in Writ Petition No.40574 of 2001
and Girija Dayal Srivastava Vs. State of
U.P. reported in 1987 UPLBEC 1121. The
relevant portion of the judgement in the
case of Smt. Madhubala Bharti (supra) is
quoted as under:-

"The another factor which is to
be considered by this Court that whether
the recovery of loss caused by a public
servant to the government can be recovered
as arrears of land revenue. In case of Girja
Dayal Srivastava (Supra) the Division
Bench of this Court has clearly held that
process of recovery arrears of land revenue
is an exception to the oral process. The
right of recovery as arrears of land revenue
must be shown to be permitted by statutory
provision including the statutory rules in
respect of government servant. In respect of
the government servant, loss caused to the
government may be recovered from the
salary under section 40 of the Civil
Services Classification (Appeal) Rules,
260 INDIAN LAW REPORTS ALLAHABAD SERIES
1930 as applicable in U.P. But under
Public Account Default Act, 1850 it cannot
be recovered as arrears of land revenue. In
case
of
Titoo
Singh
Vs.
District
Magistrate,( Supra) the provision of
Sections 173 A and 21 was being
considered and the Division Bench of this
Court has held that it cannot be recovered
as arrears of land revenue. It can adopt
other modes of recovery.

In view of the aforesaid fact, we
are satisfied that the recovery cannot be
made against the petitioner unless and until
a liability to that effect of the loss of
government amount is fixed upon the
petitioner. "

24. Learned Counsel for the Union of
India on the other hand states that the
impugned order has rightly been passed but
he failed to substantiate the fact as to why
fresh disciplinary proceeding has not been
initiated as per direction of the Central
Administrative Tribunal.

25. After considering the rival
submissions made by both side as well as
perusing the record of the case, it is
apparent
that
no
fresh
disciplinary
proceeding was initiated as per direction
of Central Administrative Tribunal and
the petitioner is not a Public Accountant
as defined in Section 2 of the Public
Accountant Default Act, 1850 and as per
Division Bench judgment of this Court in
the case of Smt. Madhubala Bharti
(supra) the proceeding of recovery cannot
be initiated against the petitioner unless
and until a liability to that effect of the
loss of government amount is fixed upon
him and even the Public Accountant
Default Act, 1850 (Act No.12 of 1850)
has
been
repealed
by
the
Central
Government on 02.09.2019 through a bill
called as Repealing and Amending Bill,
2019 as the said Act has become
obsolete.

26. In view of the aforesaid, this
Court is of the opinion that the recovery
cannot be made against the petitioner
unless and until a liability to that effect of
the loss of government amount is fixed
upon
the
petitioner.
Therefore,
the
impugned order dated 06.05.2011 passed
by the respondent no.4, Chief Post
Master, Kanpur, District Kanpur Nagar is
quashed.

27. The Writ Petition is allowed. No
order as to cost.
----------
(2023) 4 ILRA 260
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.03.2023

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Writ-A No. 47099 of 2012

Union of India & Ors. ...Petitioners
Versus
Smt. Kamla Pandey & Anr. ...Respondents

Counsel for the Petitioners:
Sri M.K. Sharma, Sri Rajnish Kumar Rai,
S.C., Sri Rajesh Tripathi

Counsel for the Respondents:
Sri
J.P.
Pandey,
Sri
Pramod
Kumar
(Saxena), Sri Pramod Kumar Saxena, S.C.,
Sri Vijay Kumar Singh, Sri Ramesh Narain
Pandey

A. Service Law - Railway Service (Pension)
Rules, 1993-Section 18 Sub-Rule (3)-
pension to casual labour-deceased was a
casual labour-his wife approached the
Tribunal by filing OA seeking family