- (1.) THESE appeals arise from the dismissal of a suit for declaration of the plaintiff' s removal from railway service as void and/or other connected reliefs, namely, a permanent injunction restraining the defendant from realising the sum of Rs. 10,510.21 Paise from the plaintiff by deducting the same from the Provident Fund dues payable to him, a declaration that the plaintiff is entitled to 15 months' pay by way of gratuity permissible under the rules on reaching the age of superannuation on 12-5-1971 and any other appropriate relief. The trial court dismissed the suit with costs. The plaintiff preferred an appeal which was partly allowed by the Addl. District Judge, Bareilly and the order dated) 6-8-1970 passed by the defendant directing recovery of Rupees 10,510.21 paise from the plaintiff was set aside. The rest of the decree was maintained. In these circumstances both parties have filed the present appeals in this court
(2.) THE basic facts of the case are not in dispute. THE plaintiff-appellant Safdar Husain was posted at Bareilly railway station of the Northern Railway as Head Stock Clerk entrusted with the duty of keeping the stocks of railway tickets. In 1967, however, he was further entrusted with the functions of the Chief Booking Clerk on retirement of the original incumbent to that post. In his capacity as the Chief Booking Clerk he was expected to maintain accounts of cash entrusted to him by various Booking Clerks on sale of tickets or otherwise. He had an iron safe in his office for keeping cash. THEre was also originally an iron almirah in the office room of the Assistant Station Master in which he was expected to keep cash at night. This almirah, however, went into the use of the Assistants Station Master because his own almirah had gone out of order sometime in 1967. Consequently the plaintiff appellant had at his disposal only the iron safe in his own office room. This office room had one door on the backside which used to be closed by a chain latch. THE main door of the office room opened on the side of the platform which used to be locked after the office hours. THE office also had an almirah in which the stocks of tickets used to be kept. On 26-2-1968 the appellant Safdar Husain had a sum of Rs. 10510.21 Paise as cash in hand which as usual he kept in the iron safe. Thereafter he placed the key of the iron safe inside the wooden almirah and locked the almirah with his own lock. The back door was bolted from inside by a porter named Moti who was at the disposal of Safdar Husain for attending to his various requirements in discharge of his official duties. Safdar Husain locked the outer door of his office and went home. On 27-2-1968 he returned on duty, opened the main door, went inside the office and found that the latch and the lock of wooden almirah had been broken open. The key of the safe was, however, in the almirah. The chain latch of the back door was also found open. When Safdar Husain opened the safe he found the entire cash missing. A preliminary enquiry was held by the Enquiry Committee which submitted its report dated 18-4- 1968. On the basis of this report disciplinary proceedings were started against Safdar Husain by means of a charge-sheet dated 7-6-1968. The following charges were framed against the appellant: " (1) Not observing the existent rules and orders for keeping the keys of the cash safe in his personal custody and leaving keys in the wooden almirah, even not in the Godrej almirah which was, available which amount to gross negligence and carelessness as this resulted in the loss of Government earnings. (2) Not physically ensuring that the back doors of his office were properly bolted and chained from inside, which would have been done in the ordinary course by any man of common prudence and thus not ensuring safety of cash. (3) Not bringing to the notice of the S.M.C.M.I. or T.A. in writing that the cash safe in the A.S.M.' s office meant for C.P.C.' s cash had been taken over from him and he had been deprived of the mandatory facility of keeping the cash in A.S.M.' s office during night and, thus not ensuring proper safety to the railway earnings.' '
(3.) ON these charges an enquiry was held by Sri K. N. Wali, Deputy Commercial Superintendent who submitted his report and held that the above three charges had been proved against the appellant. He, however, further found that the appellant has not misappropriated the amount. The report and the documents etc. were forwarded to the Divisional Superintendent, Northern Railway, Moradabad who was the disciplinary/appointing authority. The latter issued a second show cause notice dated 2-5-1970 with a tentative punishment of removal from service of the appellant and recovery of Rs. 10510.21 Paise from his dues. The appellant submitted his reply to the show cause notice. The Divisional Superintendent passed final orders on 7-8-1970 confirming the second show cause notice and consequently ordering removal of the appellant from service and recovery of Rs. 10510.21 P. from his settlement dues. It was this final order which was challenged by the plaintiff in the suit which has given rise to these appeals. The lower appellate court affirmed the finding of the trial court that there were no such rules or orders for keeping the keys of the cash-safe in personal custody. It, however, came to the conclusion that the plaintiff could not be said to have acted with due care and caution in leaving the key of the iron safe in the wooden almirah of his own office room. It went on to add that the defendant could not impose a fine of Rs. 10510.21 Paise on the plaintiff because under explanation (2) of Rule 6 penalty of fine could not be imposed on a railway servant who was exclusively employed for clerical work. In other words, it was of the opinion that the punishment of fine could not be awarded. Alternatively it held that the recovery of the above amount was in the nature of recovery of loss caused to the railway administration, therefore, it fell within the purview of Rule 6 (1) (iii) of the Rules of 1968 in which the field of recovery was limited to the pay of the railway servant. The ultimate finding, therefore, recorded by the court below was that the defendant had no jurisdiction to order recovery of Rs. 10510.21 P. from the plaintiff by the impugned order and the punishment for recovery of that amount from the appellant was illegal.;