JUDGMENT [ENTITY], J.
1. This appeal is directed against the order dated 18.2.2002 passed by the learned Single Judge dismissing the appellant's writ petition [CASE NUMBER] whereby the appellant had challenged the order dated 10.3.2000 passed by the Respondent No. 1 imposing the penalty of removal from service. The appellant also challenged the order dated 9.11.2001 whereby the appeal of the petitioner was rejected by the appellate authority.
2. The appellant was in service with the Delhi Vidyut Board (DVB) [earlier known as Delhi Electricity Supply Undertaking] for over 32 years. On 22.6.1995, a Memorandum was issued to the appellant stating that while working as a Senior Cash Clerk at the Rani Bagh Cash Collection Counter No. 504 on 26.12.1990 he embezzled/ misappropriated government money in the sum of Rs. 7695 collected by him against the electricity connection of one Mr. [ENTITY] at B-320, Lok Vihar, Pritam Pura, Delhi. The memo was accompanied by a statement of settlement of allegations against the appellant, which reads as under:
It has been reported that the said Shri [ENTITY] had accepted the payment of Rs. 7695/- at the aforesaid Cash Collection Counter towards the electricity bill of November, 90 of electric connection No. LR-504-1617368/E-218/DX on 26.12.90. On enquiry it was revealed that that the said amount did not find place in the Cashier's Summary Sheet, pertaining to the aforesaid Counter of 26.12.90. It was further noticed from the perusal of the Daily Annexure of aforesaid counter that the said Shri [ENTITY] had also not deposited the said amount as excess amount attributed on account of non-accountal of the said payment. Thus the said Shri [ENTITY] had embezzled the Govt. Money of Rs. 7695/-.
The above said act on the part of the said Shri [ENTITY] amounts to gross misconduct and as such for good and sufficient reasons he has rendered himself liable for initiation of departmental disciplinary action against him under [SECTION] of [ACT] read with [SECTION] of [ACT].
3. The list of documents, sought to be relied upon in the enquiry, read as follows:
i) Complaint of Shri [ENTITY], R/o B-320, Lok Vihar, Pritam Pura, Delhi received in the office of Revenue Officer, Chandni Chowk, Delhi on 24.7.92.
ii) Complaint dated 9.7.93 of Shri [ENTITY], R/o B-320, Lok Vihar, Pritam Pura, Delhi.
iii) Daily Annexure dated 26.12.90 of Rani Bagh Cash Collection Counter No. 504.
iv) Cashier Summary Sheet dated 26.12.90 of Rani Bagh Cash Collection Counter No. 504.
v) Letter No. AFO (D) KPM/436 dated 23/26.7.93.
vi) Letter No. Rev. Off./586 dated 24.9.93.
4. The witnesses cited for being examined by the management were Mr. [ENTITY] (the complainant), Mr. [ENTITY], Dy. A.F.O. (Retired) and Mr. [ENTITY], Revenue Officer (Retired).
5. The appellant's replied to this charge memo stating that the charges were totally unfounded and baseless that there was no iota of evidence to substantiate the charges. The appellant further maintained that the charges were framed purely on suspicion and surmises. He claimed that the copies of the documents on which reliance was placed were not furnished along with the memo of charges.
6. During the inquiry only two of the three cited witnesses were examined. They were Mr. [ENTITY], Dy F.O. (Retired) (PW-1) and Mr. [ENTITY], Revenue Officer (Retd) (PW-2). Admittedly Mr. [ENTITY], the complainant was not examined as a witness in the inquiry.
7. The Enquiry Officer gave a report on 30.8.1999 holding that the case against the appellant had been 'partly proved' and that the appellant was 'partly guilty' of the charge levelled against him. It appears that the Enquiry Officer was of the view that the extent of the involvement of Junior Cashier, Mr. [ENTITY], needed to be investigated and enquired into in detail. However, the Enquiry Officer held that the non-examination of the complainant Mr. [ENTITY] had not caused any prejudice to the appellant.
8. The appellant submitted a representation against the inquiry report on 20.12.1999 and thereafter, the impugned order dated 10.3.2000 was passed, accepting the report of the Enquiry Officer and imposing the penalty of removal from service. In the departmental appeal, the appellant contended that the report was vitiated. The appeal was rejected by an order dated 9.11.2001. The learned Single Judge in the impugned order dated 18.2.2002 dismissing the writ petition held that it was not disputed that the appellant was in-charge of the relevant counter and that the amount of Rs. 7695/- was not deposited even though the amount was not shown excess in the account of the counter. These were not matters to which the complainant (Mr. [ENTITY]) could have deposed and therefore, there was no need to examine the said Mr. [ENTITY]. Further, the learned Single Judge was of the view that even though the stub was not traceable, the record showed that the account of the counter did not reflect any excess or short amount which meant that the account was reconciled despite the amount of Rs. 7695/- not being deposited. Accordingly, it was held that since the appellant was in-charge of the counter, the culpability of the appellant was well established.
9. We have heard Mr. [ENTITY], learned Counsel appearing for the appellant and Mr. [ENTITY], learned advocate appearing for the North Delhi Power Limited (NDPL). The NDPL was imp leaded as a party in this appeal on account of the fact that in terms of the [ACT], the DVB has ceased to exist and six different entities, including NDPL, have come into existence. The NDPL filed an application seeking its deletion from the array of the parties on the plea that there was no privity of contract of employment with the appellant and it could not be made liable for the appellant's employment with the DVB. However, on 27.7.2006 NDPL informed that Court that it was not pressing the application and accordingly the application was dismissed as withdrawn. Consequently, if the appellant succeeds in this appeal, the NDPL would be liable to comply with the directions issued.
10. Mr. [ENTITY], learned Counsel for the appellant submitted that the learned Single Judge failed to appreciate that the report of the inquiry officer was vitiated in law. He submitted that there was no evidence at all to show that it was the appellant who had collected the cash from Mr. [ENTITY] and that in the absence of such evidence, the finding of part guilt by the inquiry officer was perverse. He submitted that the learned Single Judge failed to exercise jurisdiction under [SECTION] of the [ACT] and quash the order of removal from service passed by the DVB.
11. Mr. [ENTITY], learned Counsel appearing for the NDPL, on the other hand maintained that the documents on record did implicate the appellant in the transaction which took place on 26.12.1990. In particular, he referred to the statements of two witnesses in the inquiry as well as the photocopy of the relevant electricity bill bearing endorsement of '7695' which, he insisted, was written by the appellant. He submitted that the impugned judgment of the learned Single Judge did not call for any interference by this Court.
12. Upon a consideration of the submissions of the counsel, and perusing the documents brought on record, we are of the view that the report of the inquiry officer in the instant case is not sustainable in law.
13. The law relating to the scope of interference by the Court in writ proceedings under [SECTION] is fairly well settled. In [PRECEDENT] it was held that factual findings in departmental inquiry would ordinarily not be subject to judicial review except when based on no evidence or are totally perverse or legally untenable.
14. In [PRECEDENT] it was explained that the jurisdiction of the High Court is limited to examining whether the domestic inquiry is vitiated on account of non-observance of principles of natural justice or when findings are based on no evidence.
15. In [PRECEDENT]. , the judgments on the point were reviewed and it was held in para 8 as under:
Para 8 - The findings recorded in a domestic enquiry can be characterised as perverse if it is shown that such findings are not supported by any evidence on record or are not based on the evidence adduced by the parties or no reasonable person could have come to those findings on the basis of that evidence.
In that case, one of the points related to non-examination of the complainants and non-production of the original complaint. The allegations against the appellant in that case was that he did not pay the entire amount to certain labourers and had retained some amount with himself. In that context, the Hon'ble Supreme Court held as under:
Para 41 Smt. [ENTITY], appearing as a witness for the Department denied having made any payment to the appellant on that day. The labourers to whom the payment is said to have been made have not been produced at the domestic enquiry. Their so-called previous statement could not have been brought on record under [SECTION]. As such, there was absolutely no evidence in support of the charge framed against the appellant and the entire findings recorded by the enquiry officer are vitiated by reason of the fact that they are not supported by any evidence on record and are wholly perverse.
16. Likewise, in [PRECEDENT] , the complainant had not been examined in the departmental enquiry. The Hon'ble Supreme Court held that non-examination of the complainant, a material witness, vitiated the enquiry.
17. Coming to the case on hand, since the main plank of the submissions of the learned Counsel for the appellant here is that there was no evidence at all to prove the guilt of the appellant, we examined the record of the proceedings before the inquiry officer.
18. It is relevant to note that although the initial complaint of Mr. [ENTITY] dated 24.7.1992 was listed as one of the documents sought to be relied upon in the inquiry, this document was never produced. Even before us, this document, which constitutes the very basis for the inquiry against the appellant, does not form part of the record.
19. As regards the second complaint dated 9.7.1993, this document itself states that it is in continuation of the earlier letter dated 24.7.1992. Interestingly, the second complaint dated 9.7.1993 did not name any particular official at the counter who received the amount. The relevant portion of the said letter dated 9.7.1993 of Mr. [ENTITY] reads as under:
In continuation of my earlier letter dated 24.7.92 duly received on the said date in Revenue Office, Chandni Chowk indicating therein that one bill of Rs. 7695/- against K. No. LR-504-1617368 E-21/DX Meter No. 1412947 was deposited at Rani Bagh Cash Office on 16.12.90 at S. No. 33 as per photo copy enclosed. But in the subsequent bills, the said amount of Rs. 7695/- was time and again being billed. On approaching the billing office, the said amount temporarily deducted (bill enclosed) but on the next bills the said amount is again added.
I visited DESU billing office where the personnel/officers indicated that no such amount is deposited with DESU. On my threatening for approaching Vigilance Deptt. of DESU as well as CBI, they agreed to have the bill, half of the amount's adjusted since on the very same day cashier of that period fraudulently embezzled the cash. It is, therefore, requested to kindly look into the matter otherwise I shall be constrained to approach CBI/Vig. Deptt. of Home Ministry and knocking the door of the Court.
20. During the inquiry, Mr. [ENTITY], (PW-1) who was examined on 18.6.1999 was shown the collector sheets maintained at the counter on 26.12.1990. In the cross-examination, he stated as under:
I have been shown Ex. S-4, S-4A to S-4C the collector sheets maintained on 26.12.90 at counter No. 504 Rani Bagh. On that day, Shri [ENTITY] & Shri [ENTITY] were on duty on that counter to receive the cash and to issue the receipts and maintain the record. As per this collection sheet Ex. S-4A the amount was collected by Shri [ENTITY] and operated by Shri [ENTITY]. As enquiry (Preliminary) made by me on receipt of complaint in this case. I was told that the Modus Operandi of the other cashier Sh. [ENTITY] was that he used to destroy the upper portion containing the advice of Senior Cashier and record the entry of matching amount of other connection in the collection sheet so as to reconcile the receipted amount. I have been shown Ex. S-4A wherein entries from 1 to 13 and in 4 B the entries are started from S. No. 45 to onward. The entries in between are missing. More particularly, the entries of Ex. S-2A which should be at S. No. 33 is missing. The duty of making entries in the collection sheet is of Jr. cashier i.e operator. During my tenure as AFO (D) KPM, I have not seen any complaint against Sh. [ENTITY] except this incident.
21. As far as the other witness Mr. PC. [ENTITY], (PW-2) is concerned, he too was examined on 18.6.1999. He was shown the electricity bill, Ex.5-2A. The relevant portion of his statement reads as under:
Ex. S-3 is the Annexure of account of counter No. 504 dated 26.12.90 maintained by Sh. [ENTITY] & [ENTITY]. As per this annexure no excess or short amount has been shown. Ex. S-4, 4A, 4B, 4C are the collection sheet (Cashier sheet) of counter 504 dated 26.12.90. As per this document cash was collected by Shri ML. [ENTITY] & relevant record i.e stubs, posting, issuing concerned receipt & posting of stubs were maintained by Sh. [ENTITY] Cashier. As per photo copy of paid bill receipt, the amount of Rs. 7695/- was received on counter No. (not legible) on dated 26.12.90. The stamp affixed is for Rani Bagh cash counter vide receipt No. 33. Since the entries in cashier collection sheet is not showing/having S. No. 1 to 44 I can not comment, but enquiry was made as per certificate given as Ex. S-1A by the concerned staff.
22. The above is the sum total of the evidence against the appellant.
23. From a perusal of the above statements, it is apparent that neither witness has spoken about what in fact happened on 26.12.1990 at the collection counter at Rani Bagh. The two witnesses, PWs 1 and 2, deposed nearly nine years after the incident basing their opinions on inferences drawn from certain documents shown to them by the DVB. One of the documents is the bill issued to Mr. [ENTITY] by the DVB on which there is a figure of '7695' written by hand. This document, a photocopy of which is included in the appeal paper book nowhere indicates that the figure '7695' was in fact written by the appellant herein. No comparison of the handwriting of the appellant with what was written on the bill was under taken during the inquiry in order to show that it was in fact the appellant who wrote those figures. The Collector sheets did not have the relevant entry concerning the relevant bill at Sl. No. 33 since more pages were missing. While PW-2 generally infers that cash was collected by the appellant as per those documents, there is no specific statement that the sum of Rs. 7695/- was collected by him. The best evidence possible was that of Mr. [ENTITY], the complainant, who might have spoken about his having deposited cash at the counter with the appellant towards payment of the bill in question. For some reason, Mr. [ENTITY], who was a material witness, was never examined. Further, his first complaint dated 24.7.1992 was not brought on record during the inquiry. In these circumstances, the only conclusion possible is that there was no evidence to establish that it was the appellant who collected the cash of Rs. 7695/- on the relevant date from Mr. [ENTITY]. Even applying the standard of preponderance of probabilities, we are of the view that this is a case of no evidence and that the findings of the Enquiry Officer are perverse.
24. We are accordingly unable to agree with the reasoning of the learned Single Judge that since the amount stated to have been deposited by Mr. [ENTITY] was not credited to the account of Mr. [ENTITY], there was no need to examine that witness. The learned Single Judge proceeded on the premise that the fact of the appellant being in charge of the counter on the relevant date was not disputed. However, that by itself would hardly be sufficient to bring home the charge against the appellant particularly when the burden was on the DVB in this case to prove that in fact the appellant had received the cash in the sum of Rs. 7695/- on that particular day from Mr. [ENTITY]. Moreover, the exact role of Mr. [ENTITY], the Junior Cashier, who was also present at the time has not been considered. On a conspectus of the above circumstances, we are of the view that the non-examination of Mr. [ENTITY], a material witness, and the non-production of first complaint, which formed the trigger for the entire inquiry, are fatal to the inquiry proceedings and consequently the enquiry report.
25. As regards the involvement of the Junior Cashier Mr. [ENTITY], we are informed that a separate inquiry was held against him and he was awarded a lesser punishment. Be that as it may, the conclusion of the Enquiry Officer that the non-examination of Mr. [ENTITY] did not cause any prejudice to the appellant was palpably erroneous. The Enquiry Officer failed to consider that neither of the two witnesses, PW-1 and PW-2, had no knowledge of the presence of the appellant at the collection counter on the relevant date i.e., 26.12.1990 and at the time Mr. [ENTITY] is stated to have come there to pay the bill. They were deposing nine years after the event and drawing inferences by looking at certain documents. It was not safe to rely upon such evidence. Moreover, the collector sheets for the entries between Sl. Nos. 14 to 44 were not produced. The bill in question was supposed to have been entered at Sl. No. 33. Thus the corroborative evidence for the collection of the cash against the bill was also absent. The daily sheet prepared by the Junior Cashier Mr. [ENTITY] was also not produced. The records having been admittedly in the custody of DVB, the appellant cannot be visited with an adverse finding despite the failure by the DVB to produce the relevant evidence. This is certainly a case of no evidence and warrants interference under [SECTION] of the [ACT].
26. For the above reasons, we hold that the inquiry report dated 30.8.1999 returning the finding of partial guilt of the appellant is vitiated and it is accordingly quashed. The order dated 10.3.2000 removing the appellant from service and the order dated 9.11.2001 rejecting the appellant's appeal are set aside.
27. The impugned judgment dated 18.2.2002 passed by the learned Single Judge is set aside. This appeal is allowed.
28. The Appellant admittedly has crossed the age of superannuation during the pendency of these proceedings and, therefore, cannot be reinstated. We are of the view that in the facts and circumstances of the case it would serve the ends of justice if the appellant is paid 50% of the back wages. Accordingly, it is directed that the appellant be paid 50% of the back wages for the period from 10.3.2000 till the date of his superannuation within a period not later than 15.9.2006. All consequential retiral benefits, if any, be also computed and paid to the appellant by that date.
29. The appeal stands disposed of in the above terms with no orders as to costs.