JUDGMENT : Vijay Bishnoi, CJ. Heard Ms. B. Sarma, learned Central Government Counsel appearing for the petitioners. Also heard Mr. H.K. Das, learned counsel appearing for the sole respondent. 2. This writ petition is preferred by the petitioners, assailing the order dated 07.06.2023 passed by the Central Administrative Tribunal, Guwahati Bench, Guwahati (hereinafter to be referred as “Tribunal”) in Original Application No.16/2018. Vide the impugned order, the Tribunal has allowed the Original Application filed by the respondent and set aside the order dated 12.12.2017 issued by the petitioner No.4, i.e. Senior Superintendent of Post Offices, Guwahati Division, Guwahati, whereby the penalty of withholding the benefit of next increment of pay for 5(five) months without cumulative effect has been imposed upon the respondent along with recovery of Rs. 8,05,000/-, which was ordered to be deducted @ Rs. 62,000/- per month from the pay and allowances of the respondent w.e.f. December, 2017 payable in January, 2018. After setting aside the order dated 12.12.2017 issued by the Senior Superintendent of Post Offices, Guwahati Division, Guwahati, the Tribunal has further directed the petitioners, who are the respondents before the Tribunal, to refund the recovered amount within 3(three) months from the date of receipt of the copy of the said order. 3. The brief facts of the case are that the respondent was working as Postmaster, Gauhati University Head Office from 10.10.2013. He was served with an Office Memo dated 02.03.2017, whereby the Senior Superintendent of Post Offices, Guwahati Division, Guwahati, being Disciplinary Authority, had proposed to take action against the respondent under Rule 16 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 alleging misconduct on the part of the respondent. The Memorandum served upon the respondent vide order dated 02.03.2017 and the statement of imputation of misconduct or misbehaviour, on which the action is proposed to be taken against the respondent, are reproduced hereunder:- “MEMORANDUM 1. Sri Thagi Ram Nath, Postmaster, Guwahati University HO is hereby informed that it is proposed to take action against him under Rule 16 of C.C.S. (C.C.A.) Rules, 1965. A statement of the imputations of misconduct or misbehavior on which action is proposed to be taken as mentioned above is enclosed. 2. Sri Thagi Ram Nath is hereby given an opportunity to make such representation as he may wish to make against the proposal. 3. A statement of the imputations of misconduct or misbehavior on which action is proposed to be taken as mentioned above is enclosed. 2. Sri Thagi Ram Nath is hereby given an opportunity to make such representation as he may wish to make against the proposal. 3. If Sri Thagi Ram Nath fails to submit his representation within 10 days of the receipt of this Memorandum, it will be presumed that he has no representation to make and orders will be liable to be passed against Sri Thagi Ram Nath ex-parte. 4. The receipt of this Memorandum should be acknowledged by Sri Thagi Ram Nath. (A. Pattanayak) Sr. Supdt. of POs: Guwahati Division Guwahati-781001.” “Statement of imputation of misconduct or mishehavior on which action is proposea to be taken against Sri Thagi Ram Nath, postmaster, Guwahati University HO under Rule-16 of CCS (CCA) Rules, 1965 That Sri Thagi Ram Nath while working as Postmaster, G.U. HO for the period from 10.10.2013 to till date was failed to make necessary security arrangement for collecting and remitting cash from and to Sub-Post Offices under Guwahati University HO. There were two types of security arrangement in Guwahati University HO. Two armed Police were deployed for escorting cash van remitting cash to SOs for disbursement of MGNREGA payment. One armed police was withdrawn by police authority in December, 2014. Thereafter cash van remitting MGNREGA cash was escorted by one armed police and one unarmed Home Guard. This arrangement continued till introduction of FTO System making online transfer of fund and no hard cash was required to be sent to SOs for specific purpose of MGNREGA payment. After introduction of FTO system cash required for disbursement of MGNREGA was met from normal cash balance of the Sub Office. Six unarmed Home Guards were deployed at Guwahati University HO since 01.11.13. They were utilized for guarding the HO premises and two of them were utilized as escort in cash van used for collecting cash and remitting cash to and from Sub Offices under Guwahati University HO. After introduction of FTO system when there was no need to send cash to SOs for MGNREGA payments the cash van especially deployed for remittance of cash for MGNREGA payments was withdrawn in August, 2015. After introduction of FTO system when there was no need to send cash to SOs for MGNREGA payments the cash van especially deployed for remittance of cash for MGNREGA payments was withdrawn in August, 2015. Thereafter, the Postmaster, G.U. HO could have utilized this armed police in escorting the other cash van used for normal remittance to and from SOs surrendering service of one unarmed Home Guard. Instead the Postmaster, Guwahati University HO vide his letter No.A1/Security/GU HO/Corr/13-14 dated 03.10.2015 and 27.01.2016 intimated that requirement of Armed Police is almost nil and the existing escort arrangement of remittance is done with two unarmed Home Guard which is functioned smoothly. He further stated that there is no utilization of service of Assam Police personnel and therefore he recommended withdrawal of Armed Assam Police Battalion Constable. Accordingly, the last armed police was withdrawn by police authority in February, 2016. In this regard no instruction or approval for withdrawal of the armed police from G.U. HO was accorded from Divisional Office and the matter of actual withdrawal of the armed police was not communicated to Divisional Office by the Postmaster, G.U. HO thereafter. If the Postmaster, G.U. HO could utilize the armed police as escort in the cash van used for general remittance purpose instead of surrendering him, the robbery of cash from cash van on 15.07.2016 at Pakorkona amounting Rs.20,65,000/- could have been averted. That two cash overseers were regularly deployed in cash van for collecting cash and for making remittance to Sub Offices. One Cash Overseer was permitted to proceed on leave by the Postmaster, Guwahati University HO himself for 14 days w.e.f. 08.07.16, but no substitute arrangement was made by him. As a result the cash collecting works was done by single Cash Overseer on 15.07.2016. If there would have been 2(two) Cash Overseers, one could have kept cash bag in his custody while the other was fighting with the miscreants. This lapse of the Postmaster made the operation easy for the culprits. As there is one cash van, it cannot cover all the Sub Offices under Guwahati University HO on the same day due to geographical topology of the Sub Offices. 16 numbers of Sub Offices are in the north bank of the river Brahmaputra and 22 numbers of Sub Offices are in the south bank of the Brahmaputra. As there is one cash van, it cannot cover all the Sub Offices under Guwahati University HO on the same day due to geographical topology of the Sub Offices. 16 numbers of Sub Offices are in the north bank of the river Brahmaputra and 22 numbers of Sub Offices are in the south bank of the Brahmaputra. Therefore, if the cash van goes to collect from the offices at north bank on a particular day it cannot go to the south bank. As such the Postmaster used to send the cash van to the offices of each bank of the river Brahmaputra on alternative day. Last visit was made by the cash van on 13.07.16 to collect money from the offices located on the south bank of the river Brahmaputra. Therefore, the Postmaster, G.U. HO could have send the cash van to collect cash from offices located in the north bank having calls from SPM, Bezera and Baihata Chariali SO for removal of cash on 14.07.16. But on 14.07.16, Sri Thagi Ram Nath utilized the cash van for remitting his surplus cash to SBI, Maligaon branch and the cash van was detained at the bank till completion of the transaction which was a totally uncalled for and unjustified activity. The cash van along with Home Guards could have come back immediately after dropping the cash at Bank and Sri Thagi Ram Nath could have utilize the cash van for collecting cash from all the offices located in the north bank of the Brahmaputra on 14.07.16 itself if he could arrange substitute against the absentee Cash Overseer. This negligence on the part of Sri Thagi Ram Nath resulted more cash accumulation in the offices located in the north bank of the Brahmaputra and thereby amount of loss has increased substantially. It is alleged that due to the above supervisory lapses of Sri Thagi Ram Nath, the miscreants got ample scope to loot the amount of Rs.20,65,000/- from the cash van of Guwahati University HO on 15.07.16 resulting huge loss to the Department. Thus, Sri Thagi Ram Nath has violated the provisions of Rule 3(2)(i) of CCS (Conduct) Rules 1964. It is alleged that due to the above supervisory lapses of Sri Thagi Ram Nath, the miscreants got ample scope to loot the amount of Rs.20,65,000/- from the cash van of Guwahati University HO on 15.07.16 resulting huge loss to the Department. Thus, Sri Thagi Ram Nath has violated the provisions of Rule 3(2)(i) of CCS (Conduct) Rules 1964. By the above acts, Sri Thagi Ram Nath, Postmaster, Guwahati University HO alleged to have shown lack of devotion towards his official duties and also acted in a manner which is unbecoming of a Government servant and thus, alleged to have violated the provisions contained in Rule 3(1)(ii) and 3(1)(iii) of CCS (Conduct) Rules, 1964.” 4. It is the case of the respondent that after receiving the Memorandum dated 02.03.2017 along with the statement of imputation of misconduct or misbehaviour, he made several requests to the Disciplinary Authority to supply copies of certain documents but the same were not supplied to him despite repeated requests and also did not provide sufficient opportunity to inspect the same. On 21.09.2017, the Disciplinary Authority sent a notice to the respondent, whereby he was asked to submit representation in his defence within 15(fifteen) days from the date of receipt of the notice with a warning that in case he failed to submit his representation, the case would be settled ex-parte. It is the case of the petitioners that despite receipt of the above referred notice, the respondent failed to submit any representation in his defence and the Disciplinary Authority passed the impugned order dated 12.12.2017. The observations and findings as well as the order of punishment passed by the Disciplinary Authority on 12.12.2017 are reproduced hereunder:- “Observation and Findings “Sh. T.R. Nath, PM, GU HO was charge sheeted under Rule-16 of CCS (CCA) Rules 1965 for failing to make security arrangement for collecting and remitting cash from and to sub post offices under GU HO. There were two types of security arrangement at GU HO. Two armed police were deployed for escorting cash van remitting cash to SOs for disbursement of MGNREGA Cash. Since no need to send cash for MGNREGA payments after introduction of FTO system, the PM GU HO could have utilized the service of the armed police. Instead he has recommended vide his letter No.A1/ Security/GU HO/Corr/13-14 dtd. Two armed police were deployed for escorting cash van remitting cash to SOs for disbursement of MGNREGA Cash. Since no need to send cash for MGNREGA payments after introduction of FTO system, the PM GU HO could have utilized the service of the armed police. Instead he has recommended vide his letter No.A1/ Security/GU HO/Corr/13-14 dtd. 27.1.2016 by stating that requirement of armed police is almost nil and the existing escort arrangement of remittance is done with two unarmed home guards which is functioned smoothly. He also recommended withdrawal of Armed Assam Police Service Battalion constable. Accordingly, the last armed police was withdrawn by police authority in February 2016. Shri T.R. Nath neither obtain any approval from Divisional Office nor he intimated the actual date of withdrawn of the last police personnel. Shri T.R. Nath, PM GU HO should have utilized the Armed Police Personnel service for escorting cash Van instead of surrendering the same. Secondly, Shri T.R. Nath, PM GU HO did not make any arrangement for deputing two cash overseer in the cash van. The postmaster himself granted leave of one overseer and simultaneously he should arrange the substitute but he did not do so. Thirdly, Shri T.R. Nath did not utilized the cash van properly. On 14.7.2016, the postmaster GU HO utilized the cash van for remitting surplus cash to SBI Maligaon and the cash van was detained at Maligaon till completion of the transaction at Bank which is totally uncalled for and unjustified activity on the part of the Postmaster. The Cash Van with Cash Overseer & Home guards could have utilized for collection of cash from all Sub offices after dropping the cash at bank which was not done fully. On receipt of the charge sheet Sh. T.R. Nath, instead of submitting his defence representation, he demanded some irrelevant documents which were not available at Divisional office. All the documents demanded by Shri Thagi Ram Nath were not at all relevant with the case as explained above since he himself recommended withdrawal of Police personnel, did not inform the actual date of withdrawal of police to Divisional office, he himself grant the leave of one Overseer without substitute and did not issue any order to the cash overseer to visit all the SOs on 14.7.2016 after dropping the cash at SBI Maligaon. Since the official has not submitted his defence representation even after lapse of such long time i.e. seven months, the following decision is hereby awarded ex-parte. ORDER Sri A. Pattanayak, Senior Superintendent of Post Offices, Guwahati Division, Guwahati in exercise of powers conferred under Rule 12 of CCS (CCA) Rules, 1965, award Sri Thagi Ram Nath, Postmaster, Guwahati University H.O. the penalty of withholding of next increment of pay or 5(Five) months without cumulative effect with effect from the date of its becoming due and recovery of Rs.8,05,000/- (Rupees Eight Lakh five thousand) only @ Rs.62,000/- (Rupees Sixty two thousand) only per month from the pay and allowances of the official w.e.f. December, 2017 payable in January, 2018. (A. Pattanayak) Senior Supdt. of Post Offices Guwahati Division, Guwahati-781001” 5. Being aggrieved with the punishment order dated 12.12.2017, the respondent filed Original Application No.16/2018 before the Tribunal challenging the order dated 12.12.2017 and the Tribunal has allowed the same vide the impugned order dated 07.06.2023. Operative portion of the impugned order passed by the CAT is reproduced hereunder:- “13. In our considered opinion, such type of assumption and presumption does not construe to be any misconduct. Even, there are no details with regard to calculation of loss of cash due to such negligence on the part of the applicant. Therefore, we fail to understand, how the respondents had come to conclusion that an amount of Rs.8,05,000/- has caused loss to the Government due to the negligence of the applicant out of Rs.20,65,000/-. 14. We further observe that, even if, we have to accept that the applicant was negligent in not sending the cash van, even then also, such negligence does not construe to be misconduct. Therefore, judgment passed by our Co-ordinate Bench of Central Administrative Tribunal, Ahmedabad Bench in the case of J.M. Makwana (supra) is squarely applicable to the instant case. 15. In view of the above, we set aside and quash the impugned Order No.F7-1/16-17/G.U.HO (Cash Van)/ Discy/T.R. Nath dated 12.12.2017 (Annexure-A/16) issued by the Sr. Superintendent of Post Offices, Guwahati Division, Guwahati and direct the respondents to refund the recovered amount, within a period of three months from the date of receipt of the copy of this Order. 16. With the above observations and directions, O.A. stands disposed of with no order as to costs” 6. Assailing the impugned order, Ms. Superintendent of Post Offices, Guwahati Division, Guwahati and direct the respondents to refund the recovered amount, within a period of three months from the date of receipt of the copy of this Order. 16. With the above observations and directions, O.A. stands disposed of with no order as to costs” 6. Assailing the impugned order, Ms. B. Sarma, learned Central Government Counsel appearing for the petitioners has argued that the findings recorded by the learned Tribunal are illegal and are not liable to be sustained. It is contended that the disciplinary action against the respondent was initiated taking into consideration the act of supervisory negligence on his part. It is also contended that the disciplinary proceeding was finalized against the respondent after taking into account all the aspects of misconduct on the part of the respondent. It is further contended that the casual approach of the respondent is reflected from the letters dated 03.10.2015 and 27.01.2016 written to the Senior Superintendent of Post Offices, Guwahati Division, wherein it is stated that there is no requirement of armed police personnel and it is recommended that the armed police personnel be withdrawn from the Guwahati Head Office. It is submitted by the learned counsel for the petitioners that the Disciplinary Authority has also taken note of the fact that out of the two Cash Overseers, one Cash Overseer was on leave and the respondent, without making arrangement for substitute Cash Overseers, has acted in most casual manner which resulted into misconduct and, therefore, the punishment was imposed upon him. The learned counsel has further submitted that had the armed Constable not been withdrawn, the incident of looting cash from the cash van could have been avoided. It is also submitted that not sending the cash van in time by the respondent resulted into accumulation of cash in the North Branch and on account of this negligence on the part of the respondent huge cash was subjected to loot. It is submitted that had the cash van been sent in time, the loss of money would have been of lesser amount. The learned counsel has argued that sufficient evidence was available on record to the effect that the respondent had violated the provisions of Rule 3(1)(ii) and 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964 and, therefore, there was no illegality in passing the impugned order dated 12.12.2017 by the Disciplinary Authority. The learned counsel has argued that sufficient evidence was available on record to the effect that the respondent had violated the provisions of Rule 3(1)(ii) and 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964 and, therefore, there was no illegality in passing the impugned order dated 12.12.2017 by the Disciplinary Authority. It is also argued that the learned Tribunal, without taking into consideration the material available on record, has passed the impugned order in a mechanical manner and, therefore, the same is liable to be set aside. 7. Per contra, Mr. H.K. Das, learned counsel appearing for the sole respondent has vehemently opposed the writ petition and has argued that there is no illegality in the impugned order passed by the learned Tribunal. It is contended that as a matter of fact, no misconduct has been proved against the respondent and, therefore, the order imposing penalty against him is not sustainable in the eyes of law and the same has rightly been interfered with by the learned Tribunal. The learned counsel has further submitted that the Disciplinary Authority, without making an assessment, ordered for recovery of an amount of Rs. 8,05,000/- from the respondent by deducting it in installments from his monthly salary. It is contended that there is no basis for arriving at the amount of Rs. 8,05,000/- which was ordered to be recovered though the total amount of money involved in the looting incident was Rs. 20,65,000/-. The learned counsel has submitted that the Tribunal, taking into consideration the above facts and circumstances of the case, has rightly observed that there is no basis for the Disciplinary Authority to order for recovery of an amount of Rs.8,05,000/-. The learned counsel has further submitted that in the facts and circumstances of the case, at the most it can be concluded that the respondent was negligent in discharging his duties but such negligence cannot be termed as “misconduct” and, therefore, the learned Tribunal has rightly interfered with the impugned punishment order. The learned counsel for the respondent has, therefore, prayed that there is no merit in this writ petition, the same may kindly be dismissed. 8. Heard the learned counsel for the parties and perused the material available on record. 9. The learned counsel for the respondent has, therefore, prayed that there is no merit in this writ petition, the same may kindly be dismissed. 8. Heard the learned counsel for the parties and perused the material available on record. 9. From a perusal of the punishment order as well as the other material available on record, it is clear that it is not the case of the petitioners that the looting incident, wherein Rs. 20,65,000/- has been looted from the cash van, was carried out by the culprits in connivance with the respondent. The main charge against the respondent was to the effect that he was negligent in his duties. The Disciplinary Authority was of the opinion that the presence of the armed police in the cash van was the need of the hour but the respondent recommended that since withdrawal MGNREGA payments are not made in cash, the armed police is not required. 10. It is to be noticed that vide letters dated 03.10.2015 and 27.01.2016, the respondent had written to the Senior Superintendent of Post Offices, whereby he recommended for withdrawal of the armed police on the ground that with the introduction of remittance by FTOs and discontinuance of manual payments, MGNREGA payments were not being regularly received. The respondent had also requested the Senior Superintendent of Post Offices to take necessary action in this regard. However, in the letter dated 03.10.2015, he emphasized that as huge cash was to be transported by cash van, necessary provisions may kindly be made for providing suitable arms for the Home Guards accompanying the cash van. Similarly, in the letter dated 27.02.2016, the respondent also requested the Senior Superintendent of Post Offices for withdrawal of attachment of Assam Police Armed Battalion Constable from the Office. It is not clear whether or not the Superintendent of Post Offices requested the Police Authorities for withdrawal of the armed police from the office of the Postmaster, Gauhati University Head Office and, acting on his request, the armed constable was withdrawn. In any case, if the armed constable had been removed from the Office of the respondent, he must have been removed only after approval by the Superintendent of Post Offices and not merely on the basis of the recommendation made by the respondent. 11. In any case, if the armed constable had been removed from the Office of the respondent, he must have been removed only after approval by the Superintendent of Post Offices and not merely on the basis of the recommendation made by the respondent. 11. Be that as it may, it can be presumed that looking to the less cash inflow into the Office, the respondent, acting bona fide, recommended for withdrawal of the armed police and, at best, it can be termed as an error of judgment but cannot be termed as “misconduct”. Another reason which prevailed in the mind of the Disciplinary Authority was that the respondent had not deputed one more Cash Overseers when out of two Cash Overseers one Cash Overseer was on leave. It is emphasized in the punishment order that the respondent, while utilizing the cash van for remitting surplus cash to SBI, Maligaon, detained the cash van till completion of the transaction at Bank, whereas after dropping the cash at SBI, Maligaon, the cash van with the Cash Overseer and Home Guards could have been utilized for collection of cash from all Sub-offices. Again, in our view, it can be termed as an error of judgment but certainly not misconduct. 12. The Hon’ble Supreme Court in catena of decisions has held that an error of judgment cannot be termed as misconduct until it is proved that there is abuse of discretion by the incumbent and the said action of the incumbent is intentional. [See Raviyashwant Bhoir -Vs- District Collector, Raigad & Ors., (2012) 4 SCC 407 ] 13. As observed earlier, merely because the respondent had committed negligence on account of his judgmental error, it cannot be concluded that misconduct on the part of the respondent is proved. Otherwise also, there is no material available on record to suggest that the negligence committed by the respondent was intentional or, as observed above, he had connived with the culprits in looting the cash. Therefore, we are of the view that the learned Tribunal has not committed any illegality in concluding that the negligence on the part of the respondent does not construe to be misconduct. 14. We are also of the opinion that the Disciplinary Authority has committed an illegality in ordering recovery of Rs. Therefore, we are of the view that the learned Tribunal has not committed any illegality in concluding that the negligence on the part of the respondent does not construe to be misconduct. 14. We are also of the opinion that the Disciplinary Authority has committed an illegality in ordering recovery of Rs. 8,05,000/- by deducting @ Rs.62,000/- from the monthly salary of the respondent, without there being any calculation of loss of cash. It is not clear that how the Disciplinary Authority arrived to the conclusion that the amount of Rs. 8,05,000/- is to be recovered from the respondent though the actual loss caused to the Bank in the looting incident was Rs. 20,65,000/-. 15. In such circumstances, we are of the view that the learned Tribunal has rightly interfered with the said part of the punishment, set aside the said recovery order and has also rightly ordered for refund of the recovered amount. 16. In view of the above discussion, we do not find any merit in this writ petition, the same is, therefore, dismissed. However, looking to the fact that the writ petition is pending since 2023, we grant 3(three) months’ time to the petitioners to refund the amount so recovered from the respondent in terms of the order dated 12.12.2017 within a period of 3(three) months from today, if not refunded till now. 17. No order as to cost.