WP(C) 4627/2006 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER 1. Heard Mr. G. Uzir, learned counsel for the petitioner as well as Mr. S. Samaria, learned Standing Counsel, Agriculture Department. 2. Both the writ petitions being interconnected and between the same partie s have been heard together and are being disposed of by this common judgment and order. 3. While in the writ petition being WP(C) No. 4627/2006, the petitioner has specifically challenged the Annexure-19 order dated 7.7.2006 passed by the Disc iplinary Authority imposing penalty of stoppage of three annual increments with cumulative effect, in WP(C) No. 3764/2008, the petitioner has specifically praye d for his promotion to the post of Senior Assistant from the date when his junio rs were promoted. In addition to the said prayer, the petitioner has once again challenged the order dated 7.7.2006 by which the Disciplinary Authority imposed the aforesaid penalty, which the subject matter of challenge in WP(C) No. 4627/2 006. Thus, there is repetition of the prayers made in both the writ petitions. 4. The petitioner while was serving as Lower Divisional Assistant in the of fice of the Sub-Divisional Agriculture Officer, Sadiya was placed under suspensi on by order dated 21.2.2003. He was so suspended from service pending drawal of departmental proceeding. Thereafter he was issued with the show cause notice/cha rge sheet under Rule 9 of the Assam Services (Discipline & Appeal) Rules, 1964 r ead with Article 311 of the Constitution of India, in which the following charge s were leveled : 1. While you were working as L.D.A. in the office of the S.D.A.O., Sadiya, you collected a total sum of Rs. 2,76,920/- against 43 nos. of farmers share for ins tallation of STW under ARIASP scheme @ Rs. 6440/- each. After collection of the amount you have neither deposited the amount to the cashier nor to the S.D.A.O. Sadiya. Subsequently you have misappropriated the entire amount of Rs. 2,76,920/ - deliberately. You are therefore charged with misappropriation of public money and breach of tr ust. 2. While you were working as L.D.A. in the office of eh S.D.A.O., Sadiya, the am ount of Rs. 2,76,920/- so received by you as farmers share you have issued money receipt with your signature which is unauthorized. The amount has also not been entered in the Cash Book which violated the provision as laid down in Rule 95 o f the AFR. You are therefore charged with gross insubordination, violation of financial rul e and breach of trust. 3. While you were working as L.D.A. in the office of eh S.D.A.O., Sadiya, you ha ve collected money from a Grade-IV staff of the office of the S.D.A.O., Sadiya o n the pretend of issuing Power Tiller to him with a motive to misappropriation o f the amount. However, on being detected of your willful misappropriation, you h ave returned the money after lapse of a consideration period to the Grade-IV emp loyee. You are therefore charged with willful misappropriation of public money and brea ch of trust. 4. While you were working as L.D.A. in the office of the S.D.A.O., Sadiya, you h ad collected a sum of Rs. 68,000/- from one Shri Moleswar Gogoi (Ganesh) of Na-T arani village on the plea of allotment of tractor on subsidy. You received the a mount in presence of Sri Gohain, VLEW under Sadiya Sub-Division. After collectin g the amount you have misappropriated the entire amount willfully . You are therefore charged with gross misappropriation of public money and breach of trust. 5. While you were working as LDA in the office of the SDAO, Sadiya, you have che ated the general public by taking money in the name of issue of pump sets, STWs, Tractor and power tiller in several occasions. It is also evident that you have collected farmers share @ Rs. 7600/- against each STW instead of Rs. 6440/- per STW. But ultimately no STW was installed, no power tiller or Tractor were issue d to any farmer and thus you have collapsed the image of the department before t he public as a reslt of which the public are agitated against the department. You are therefore charged with gross insubordination misbehavior and cheating of general public. 6. While you were working as LDA in the office of the SDAO, Sadiya, you have col lected the farmers share in cash instead of bank draft. As per guidelines of the scheme pertaining to installation of STW farmers share are required to be colle cted by draft but in violation of the provision you have collected the farmers s hare in cash with an ulterior motive to misappropriate the public money willfull y. You are therefore charged with gross insubordination breach of trust and violati on of provision under guideline. 5. By the aforesaid show cause notice/charge sheet, the petitioner was aske d to submit his written statement of defence. In due course, the petitioner subm itted his written statement denying the charges. Thereafter, a regular departmen tal proceeding was conducted. Since there is delay in finalizing the departmenta l proceeding, the petitioner had approached this Court by filing a writ petition being WP(C) No. 2561/2006. The writ petition was disposed of by order dated 29. 5.2006 with a direction to the Disciplinary Authority to pass the final order in the departmental proceeding. Pursuant to the said order, the Disciplinary Autho rity passed the impugned Annexure-19 order dated 7.7.2006, which reads as follow s: GOVERNMENT OF ASSAM DIRECTORATE OF AGRICULTURE ORDERS OF DIRECTOR OF AGRICULTURE, ASSAM KHANAPARA, GUWAHATI-22 READ: The charges framed against Shri Rafiqul Ahmed, L.D. Asstt. under Sub-Div isional Agricultural Officer, Sadiya vide Govt. letter No. AGA.25/2003/(13)/112 dtd. 21.7.2003, the written defence statement of the delinquent official. The In quiry Report submitted by the inquiry officer, Shri Arijit Das Gupta (Jt. Direct or of Agriculture (CIS) and all other connected papers/relevant documents etc. p ertaining to the departmental proceedings. Govt. letter No. AGA.25/2003/(13)/212, dtd. 19.4.2006 and No. AGA.25/2003/ (13)/ pt.7, dtd. 29.6.2006. ORDER: After careful consideration of all relevant papers, records, documents etc. and having regard to the evidence and circumstances of the departmental pro ceeding case against Shri Rafiqul Ahmed, L.D. Asstt., it is held that the charge s of lack of responsibility, including in financial irregularities, gross miscon duct, misappropriation of public money, breach of trust against the delinquent o fficial is established. Considering the whole facts and circumstances of the case, it is held that Shri Rafiqul Ahmed, L.D. Asstt. in the office of the Sub-divisional Agricultural Offi cer, Sadiya, be censured and an amount of Rs. 2,76,920.00 (Rupees two lakhs seve nty six thousand nine hundred twenty) only may be realized at one installment fr om Shri Rafiqul Ahmed L.D. Asstt. Stoppage of 3 (three) annual increments with cumulative effect is held. Pay and allowances of Shri Rafiqul Ahmed, L.D. Asstt. in the office of the Sub-d ivisional Agricultural Officer, Sadiya, during the period of suspension will be limited to subsistence allowances already drawn by him and the period of his sus pension will not be counted for any purpose except pension. He is also debarred from holding any post having financial involvement during th e his entire service life. With the above orders the departmental proceedings drawn up against Shri Rafiqul Ahmed, L.D. Asstt. stands finally disposed off. Sd/- Director of Agriculture, Assam Khanapara, Guwahati-22. 6. The basic challenge of the petitioner to the said order dated 7.7.2006 i s that the said order did not take into account the fact that the petitioner had returned the money in question. It will be pertinent to mention here that the p etitioner was arrested in connection with the criminal case registered on the ba sis of the facts mentioned in the charge sheet. He had approached this Court by filing Bail Application being B.A. No. 1739/2002 and obtained anticipatory bail. 7. On perusal of the pleadings in the writ petition, nothing is found towar ds challenging the procedure adopted in the enquiry proceeding. The only plea of the petitioner is that since he had returned the amount in question, the Enquir y Officer could not have held him guilty and consequently the Disciplinary Autho rity also could not have imposed the impugned penalty. 8. The respondents have filed their counter affidavit denying the contentio ns raised in the writ petition. Along with the counter affidavit, the respondent s have enclosed the undertaking furnished by the petitioner himself that he had kept the amount of Rs. 2,70,480/- and Rs. 12,600/- and that he would return the amount within 90 days. For a ready reference, the Annexure-B undertaking as anne xed to the counter affidavit is quoted below: UNDERTAKING S.D.A.O., Sadiya I Mr. Rafiqul Ahmed declared on 30.07.02 that the full amount of Rs. 2,70,480 (s hare money) and Rs. 12,600 (transportation charge) collected from farmers kept b y me. I assured you to repay the amount to the beneficiaries within 90 days. SO you are requested to withdraw the FIR. The papers related with STW submitted by me to the authority are false. Rafiqul Ahmed D/A to the SDAO, Sdy. 9. In the counter affidavit, the respondents have stated about the manner a nd method in which the enquiry was conducted and the participation of the petiti oner in the said proceeding. It was pursuant to such a proceeding and the petiti oner having found guilty of the charges, the Disciplinary Authority imposed the aforesaid penalty. 10. On perusal of the enquiry report, it is found that the charges against t he petitioner were established in the enquiry. Considering the said report, the Disciplinary Authority imposed the penalty vide the impugned Annexure-19 order d ated 7.7.2006. 11. The petitioner having admitted that he had kept the amount himself and h aving furnished the undertaking of returning the same within a period of 90 days , cannot now take the plea that since he had deposited the amount, he should be absolved of the charge of misappropriation of the amounts in question. Law is we ll settled even in case of temporary misappropriation, the charged officer is li able to be punished. It is not the quantum of the amount or its duration of bein g in the custody of the charged officer, but the test is as to whether the charg ed officer conducted himself in a manner unbecoming of an officer/employee on wh ich the employer reposed confidence. 12. In the second writ petition i.e. WP(C) No. 3764/2008, the petitioner has repeated the prayer made in WP(C) No. 4627/2006 so far as the same relates to t he impugned order of penalty. Only addition to the writ petition is his prayer f or promotion with retrospective effect i.e. from the date when his juniors were promoted to the next higher grade. 13. The petitioner having misappropriated the Government fund/amount and he himself having admitted the same cannot expect any leniency from the Disciplinar y Authority. He should rather consider himself to be lucky to go away with the p enalty of stoppage of three annual increments with cumulative effect. 14. As regards recovery of the amount, as reflected in the impugned order su ffice is to say that the petitioner being responsible for loss of Government mon ey, the Disciplinary Authority is entitled to recover the same from his pay and allowances. Such recovery cannot be projected to be a penalty so as to contend t hat a further penalty of stoppage of three annual increments with cumulative eff ect could not have been imposed. The Disciplinary Authority is entitled to get r ecovery of the amount which it has lost on account of the delinquent officer on the basis of the proven charge. The said authority is also entitled to impose on e more punishment in the disciplinary proceeding i.e. what has been done in the instant case. 15. The petitioner having been imposed with the impugned penalty pursuant to the departmental proceeding, he also cannot contend that he is entitled to full pay and allowances for the period of suspension. Thus, I see no infirmity in th e impugned order dated 7.7.2006. 16. This now leads us to the prayer of the petitioner in WP(C) No. 3764/2008 to grant him promotion with retrospect effect. Since the petitioner was under c loud initially when he was placed under suspension and thereafter during the cou rse of departmental proceeding which was followed by imposition of impugned pena lty, he cannot claim as a matter of right that he should be promoted with retros pective effect. At the time of filing of both the writ petitions, the proceeding against the petitioner was on and eventually the impugned penalty order dated 7 .7.2006 was imposed. 17. Mr. Uzir, learned counsel for the petitioner submits that since the effe ct of the order of penalty is already over, the respondents should consider the case of the petitioner for promotion. According to him, the stoppage of three an nual increments for a period of three years having seized to have any effect on expiry of three years, the petitioner is now entitled to get promotion. 18. This Court exercising its power of judicial review under Article 226 of the Constitution of India cannot issue any mandamus to the departmental authorit y to promote the petitioner. Various yardsticks and parameters are to be applied towards consideration of the case for promotion. It will be entirely upto the a uthority in the Department of Agriculture to consider the case of the petitioner as to whether he is entitled to promotion on expiry of the effect of the order of penalty. However, under no circumstances a direction can be issued for retros pective promotion of the petitioner. The petitioner will have to earn his promot ion on the basis of his ACRs and service profile and not otherwise. 19. For all the aforesaid reasons, I do not find any merit in the writ petit ions and accordingly they are dismissed. 20. At this stage, Mr. Uzir, learned counsel for the petitioner submits that since in the impugned order dated 7.7.2006, there is mention of censuring the p etitioner in addition to the penalty of stoppage of three annual increments, the said observation is liable to be interfered with. Possibly the Disciplinary Aut hority by expressing the word censured wanted to severely warn the petitioner for his mis-demeanor. Be that as it may, since censure is also a penalty, the ex pression be censured occurring in the order dated 7.7.2006 shall stand deleted .