Badal Chandra Malakar vs State Of Tripura And Ors

Heard learned counsel for the parties for final disposal of the petition.

Petitioner has challenged an order dated 29.05.2019 by which the respondents have ordered a recovery of Rs.10,64,040 from the pay and allowances of the petitioner @ Rs.14,778 per month.

Brief facts are as under:

Petitioner is serving on the post of Storekeeper under the State of Tripura. On 21.06.2016 the Block Development Officer, Ambassa issued a show-cause notice to the petitioner calling upon the petitioner why a sum of Rs.4,26,155 which was a loss caused to the petitioner on account of his negligence should not be recovered. This proposal was on the basis that from the record it was found that when the petitioner was a Storekeeper at Ambassa there were huge discrepancies in the store materials. The petitioner replied to the show-cause notice on 25.06.2016 denying the allegations and in particular pointing out that the report on the basis of which the show-cause notice proceeds, may be supplied to him so that he can make his full defence.

On 13.12.2017 the District Magistrate & Collector, Dhalai District issued another show-cause notice which reads as under:

"Whereas, it has been directed by the RD Department, Govt. of Tripura vide F.4(2)-EE/RDSD/2017-18(PART) dated, 23.10.2017 to initiate DP and for recovery of the liabilities fixed i.e. Rs.10,64,040 (Rupees ten lakhs sixty four thousand) only from Sri Badal Malakar, Ex-Store Keeper of Ambassa RD Block.

AND

Whereas, it has been observed from the report of the enquiry team that some discrepancies were detected and it is found that the misappropriation allegedly done on mala fide by the then Store Keeper of Ambassa RD Block Sri Badal Malakar which is highly unbecoming on the part of a responsible Govt. Official. Such act of negligence and indiscipline on the part of a Govt. employee is unbecoming and violation of rule-3 of Tripura State Civil Service (Conduct) Rules 1988.

AND

Now, therefore, Sri Malakar, Ex-Store Keeper, Ambassa RD Block is hereby asked to explain the reasons as to why the entire amount i.e Rs.10,64,040/- shall not be recovered from him and why Disciplinary Proceeding shall not be instituted against him.

The reply of show cause notice should be submitted to the undersigned within 3(three) days from the date of receipt of this notice failing which ex parte decision shall be taken against him."

The petitioner replied to this show-cause notice on 20.12.2017 again asking for the inquiry report so that he can make his full defence.

On 20.05.2019 the Block Development Officer, Ambassa wrote to the petitioner as under:

"Sir,

With reference to the subject cited above, I would like to inform you that a letter has been received by this office from DM & Collector, Dhalai vide No.F.7(37)/DM(D)/ESTT/2011/1641 dt. 13/05/2019 citing a instruction to recover amounting to Rs.10,64,040/- (Rupees Ten Lakh sixty four thousand forty) only, which has been fixed by the department against you. The liability i.e., the amount of Rs.10,64040/- will be recovered from your monthly salary commencing from this month.

Under the above circumstances, this office has decided to deduct an amount of Rs.14,778/-(approx) per month for 6(six) years from your salary bill.

In this regard, you are requested to inform to the undersigned whether you have any comments regarding the quantum of amount that has been fixed for monthly deduction within 7(seven) days of receipt of this letter, otherwise, this office will treat you have no-objection regarding the deducted amount as fixed i.e. Rs.14,778/- per month.

This is for your kind information."

The petitioner replied to the said letter under a communication dated 23.05.2019 reiterating that the material on the basis of which the department is proceeding, has never been supplied to the petitioner.

The Block Development Officer passed the impugned order dated 29.05.2019 which reads as under:

"Sir,

With reference to the letter No.F.2(4)/ BDO/ABS/ESTT/2018-19/621-27 Dt.20/05/2019 of this establishment, a reply has been received from your end. The undersigned is not satisfied with your reply, that's why an amount of Rs.14,778/- as monthly installment has been deducted from your salary bill for the month of May, 2019 payable in June, 2019. And the entire amount of Rs.10,64,040/-will be recovered in 72 no installments. However, the request for store verification report has been sent to DM & Collector, Dhalai.

This is for your kind information."

Appearing for the petitioner, learned counsel Mr. Samarjit Bhattacharjee submitted that the action of the department suffers from breach of principles of natural justice. The internal inquiry reports on which the department has heavily relied on have never been supplied to the petitioner. Thus a unilateral decision is taken that the petitioner has caused loss of Rs.10,64,040 to the Government. He submitted that the initial proposal under show-cause notice dated 21.06.2016 was only for a sum of Rs.4,26,155. How this sum increased to Rs.10,64,040 has not been shown. In any case, the department cannot seek recovery without holding a departmental inquiry and establishing the charges of negligence or misappropriation against the petitioner. Counsel pointed out that in the affidavit in reply filed by the Government it is stated that the department has now initiated a departmental inquiry under memorandum dated 16.10.2019. Unless and until this departmental inquiry is over no recovery would be permissible. In support of his contentions counsel relied on the decision of Supreme Court in case of State of Orissa vs. Dr. (Miss) Binapani Dei and others reported in AIR 1967 SC 1269.

On the other hand, Government counsel Mr. Nepal Majumder opposed the petition contending that show-cause notices were issued to the petitioner. His replies were considered but not found satisfactory. The petitioner had caused loss to the revenue of Rs.10,64,040. Recovery is, therefore, ordered from his pay.

For several reasons the impugned order cannot be sustained. I do not accept the contention of the counsel for the petitioner that in all cases of recoveries, there must be a prior departmental inquiry and establishment of charges against the Government servant. There may be numerous cases of recoveries from the pay of a Government servant arising out of reasons other than his misconduct. In other words, if the recovery is not on account of an allegation which amounts to misconduct coupled with loss to the exchequer, holding of departmental inquiry may not be necessary. However, in the present case facts are peculiar. The show-cause notices issued by the department in the years 2015, 2017 and 2019 did not provide any material to the petitioner on the basis of which the departmental authorities were tentatively of the opinion that the petitioner had caused loss to the Government revenue. Without such information being provided to the petitioner the petitioner could not have been expected to make a full representation. The action of the department, therefore, was clearly in the breach of principles of natural justice.

Subsequently, yet another angle has arisen in this petition by virtue of the department initiating an inquiry against the petitioner under the said memorandum dated 16.10.2019. As per this charge-sheet, it is alleged against the petitioner that he had misappropriated the said sum of Rs.10,64,040. Thus, even the department has changed its stand from the petitioner negligently causing loss to the Government to deliberately misappropriating Government fund. In that view of the matter, in any case it would be necessary that the department completes the said inquiry and only upon conclusion of which and subject to its outcome recovery can be made. In such departmental inquiry the department would have full choice of not only seeking recovery of the alleged loss, but also imposing suitable punishment if the charges are ultimately held to have been proved. The petitioner would also have his full innings to defend himself.

Under the circumstances, impugned order dated 29.05.2019 is set aside. The respondents would be free to continue with the departmental inquiry and take it to its logical conclusion.

Petition is disposed of accordingly.

Pending application(s), if any, also stands disposed of.