Contributory Negligence – India Post Orders

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Recoveries on alleged grounds of so-called contributory negligence are increasing day by day. Department of Posts as well as Department of Personnel & Training had issued various orders relating to dealing of cases involving contributory negligence. Here we have compiled all those orders which will be very helpful in the day to working.

Contributory Negligence - India Post Orders
Contributory Negligence – India Post Orders

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Contributory Negligence – India Post Orders

(DG P&T Memo No. 6/8/59-DISC dated 09.07.1959)

“The nature and magnitude of the offence on the part of each official determine the penalty prima-facie justified. Therefore, the Disciplinary Authority should, before initiating departmental proceedings, determine whether action should be taken under Rule 15 or Rule 16 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957. If only one of the minor penalties is called for, action should normally be taken under Rule 16 ibid so that the proceedings are not delayed unnecessarily.”

While it is important that every official responsible for mis-conduct or negligence should be suitably dealt with it is of equal importance that the concept of contributory negligence’ should be correctly understood by the Disciplinary’ Authorities and there should not be any attempt to somehow or other effect recovery of the entire loss sustained by the Department by imposing punishments on official who are guilty of only minor omissions. In the interest of expeditious action it is important that ‘contributory negligence’ should be correctly assessed in a realistic manner and while determining any omissions or lapses on the part of an official, the bearing of such lapses on the loss considered and the extenuating circumstances in which the duties were performed shall be given due weight. For instance in the case of burglary in a post office, if normal precautions are taken in the locking of the office or safe, holding an official responsible for contributory negligence for the simple reason that on certain previous occasions he had allowed the office safe to be opened in his presence by a Class IV official would be a far-fetched hypothesis in regard to contributory negligence and would cause undue hardship to officials and delay in the finalisation of disciplinary proceedings.

(DG P&T Memo No. 25/49/60-DISC dated 30.11.1960)

In this office Memo No, 6/20/58-Disc dated 18.3.58,a form for the charge sheet under Rule 16 of the Central Civil Services (classification, Control and Appeal) Rules had been prescribed. Cases still occur where neither the prescribed form is used nor there is any indication in the charge sheet that action was contemplated for or indicate in the charge sheet that action was proposed under Rule 16 of the C. C. S (C.C.A) Rules, 1957, or that it was proposed to impose a particular penalty, the proceedings become liable to be halted.

One of the penalties prescribed in Rule 13 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 is recovery from pay of the whole or part of any pecuniary loss caused to the Govt. This penalty can be imposed, only when it has been established that the Govt.Servant concerned was negligent in the performance of his duties or was responsible for breach of rules or orders and that the loss was caused by such negligence or breach. It has come to notice, that in quite a few cases punishment orders do not contain a finding on these two important issues in clear and precise terms. In some, the relation between the negligence or breach of orders or rules and the loss is left out while in some this relation is so loosely described as would be capable of a construction other than that intended. As such punishment orders are liable to be successfully challenged. It is necessary that the disciplinary authorities word these orders carefully and in conformity with the language of the rule. In other words, they must contain a clear finding on the following points:-

I. That the Govt. servant was responsible for a particular act or acts of negligence or breach of orders or rules and
II. That such negligence and/or breach of orders or rules caused the loss.

It is of course necessary that the punishment order should discuss the case fully so as to clearly bring out that the finding/findings have been arrived at after the punishing authority has applied his mind thereto.

(Instruction No 23 (b) Rule 11 CCS (CCA) Rules)

Penalty of recovery can be awarded only if the lapses on the part of the Government Servant either led to the commission of fraud or misappropriation or frustrated the enquiries as a result of which it has not been possible to locate the real culprit.

Therefore the charge sheet should be elaborate and should not only 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 of misappropriation should 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. This will enable the accused not only to submit defence against the allegation brought against him but also to explain how the lapses had not contributed to the loss in any manner.

The disciplinary authority is also required to give a clear finding in the punishment order on both these points. If it is not done, the order awarding the penalty of recovery will be liable to be set aside.

Important Judgement related to recovery

In the case of Station Master, AIR Ranchi where he has been given direction to deposit a sum of Rs.13,222 which had been looted away from his custody by unknown culprit and ordered for recovery under contributory factors, the CAT, Patna in its judgment dt. 01.05.2000 has held as follows: –

“There was a regular police investigation in this case and the police arrived at a definite conclusion that the occurrence of looting. i.e., a case of constituting an offence under section 379 of IPC did occur but, culprit could not be located. There was no civil/criminal involvement on the part of the applicant as per police investigation. We find sufficient meant in this case of the applicant. The impugned order is not sustainable in law. OA is allowed.”

Minor mistakes in the discharge of duties (DG (P) No. 20/21/63-Disc dated 08.10.1963)

I am directed to refer to your letter No. P/25-1(A) dated 28.08.63 and to state that disciplinary authorities take all factors in to account before they intimate formal disciplinary proceedings. No authority would take an official to task on the basis of purely clerical mistakes if it had happened due to rush of work. In cases where the mistakes exhibit a gross negligence which could have been avoided, the competent authorities will have to take due notice. An under charge of a telegram is a negligence and before disciplinary proceedings are initiated for recovery of the amount under charged, the official is always given a chance to make good the loss without the necessity for disciplinary proceedings. All the handicaps are duly taken into account before disciplinary proceedings are initiated. Wherever possible, preliminary explanations are invariably obtained before the question of initiating disciplinary proceedings are initiated.

Promotion effect of punishment and monetary recovery – (DG(P&T) No. 35/9/84-SPB-II dated 19.05.1984)

Promotion of the official can be given effect to during the currency of the punishment of monetary recovery. In this connection your kind attention is invited to the instructions issued by the Ministry of Home Affairs, Department of Personnel and A. R under Memo No. 22011/1/68-Estt. (A) dt. 16.02.79 there stating interalia that the punishment of censure, recovery and pecuniary loss and stopping of increment do not constitute a bar to promotion of the official provided on the basis of overall assessment of his record of service, the DPC recommends his promotion to the next higher grade.

Fixing up contributory negligence – (DG (P) No. 15-9/74-INV dated 10.02.1975)

The responsibility of a Departmental or an Extra-Departmental official in the matter of loss of Govt. money and property is stated in Rules 204 and 204 A of P&T Manual Vol.III (1972 Edition). These rules are derived from general guidance in Appendix II of Compilations of General Financial Rules, Vol. II. However, the Director General has had occasions to observe that recoveries for loss are being effected even from officials remotely guilty of contributory negligence. This creates a feeling of frustration and insecurity and instead of aiming at efficient and proper service; the staff are prone to adopt a defensive posture of work.

It is felt that instructions contained in the above rules are adequate but are not being implemented in the spirit of these rules. In dealing with a fraud case the primary consideration of some disciplinary authorities appears to be the question of recovery of the loss in fraud and sometimes supervisory officials who can only be remotely connected with the case are punished with recovery solely for this purpose. This need not be the case. The default or lapses of each official should be judged carefully to see if this offence merits recovery and or any other punishment.

Pecuniary responsibility need not be fixed for mere routine at petty lapses. For effecting recovery, negligency should be such as has been the direct or prominent cause of the loss to the Govt. and loss sustained was a probable consequence of that lapse.

Rule 106, 107 & 108 of P&T Manual Vol-II

1. In the case of proceedings relating to recovery of pecuniary losses caused to the Government by negligence, or breach of orders by a Govt. Servant, the penalty of recovery can be imposed only when it is established that the Govt. Servant was responsible for a particular act or acts of negligence or breach of orders or rules and that such negligence or breach caused the loss.

2. In the case of loss to the Govt. the competent disciplinary authority should correctly assess in a realistic manner the contributory negligency on the part of and officer and while determining any omission or lapses on the part of an office, the bearing of such lapses on the loss consider on the extenuating circumstances in which the duties were performed by the officer, shall be given due weight.

3. The maximum amount which may be recovered from a delinquent officer on account of the loss caused to the Department through his negligence should be 1/3rd of his pay spread over a period of 3 years. For this purpose, only basic pay should be taken into account. In addition to the penalty of recovery, technically there is no bar to impose any statutory penalty, if the circumstances of the case justify it. The punishing authority should however bear in mind that when more than one penalty is imposed, one of which is recovery of pay of the whole or a part of the loss caused to Govt.it should not be of such severity so to make impossible for him, to bear the strain.

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