IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 356 of 1998 KUNJ BEHARI LAL V/S MUNICIPAL BOARD, SURATGARH & ORS Mr. HS SIDHU, for the appellant / petitioner Mr. DS RAJVI, for the respondent Date of Order : 3.12.2007 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI MUNISHWAR NATH BHANDARI,J. ORDER By this appeal, the appellant seeks to assail the order of the learned Single Judge, dismissing the petitioner's writ petition. The petitioner by the writ petition sought to challenge the order Annexure-10, report Annexure-11, and the order Annexure-12. The petitioner also sought to restrain the respondent from holding enquiry against the petitioner, so also from recovering the amount mentioned in Annexure-12. The above relief is claimed on the facts pleaded in the writ petition, being, that a disciplinary enquiry was initiated against the petitioner, and he was placed under suspension. Then, charge sheet was issued along with the statement of allegations. However, during pendency of the enquiry, the suspension was revoked, and after completion of the enquiry, the petitioner was exonerated vide Annexure-5. However, it appears, that under the directions of Dy. Director, Local Bodies, the Regional Assistant Director, Local Bodies, again wanted to hold enquiry, for which the petitioner was already exonerated vide Annexure-5, and in compliance of the letter dt. 26.2.85, the Executive Officer directed the petitioner to proceed to Jodhpur, where he contacted respondent no.4. Thereafter he was directed to attend the office of respondentno.4. However, he being ill could not attend. Then, he, however, attended the office of respondent no. 4 on 12.8.85, as desired, and given written submissions Annexure-9. Then, he was again asked to appear on 26.8.85, and 27.8.85, on which date he submitted various and number of required particulars. Then, he received the order Annexure-10, along with copy of the report Annexure-11. Then, it is submitted, that as a matter of fact also respondent no. 4 did not hold any enquiry, after giving notice to him, rather he simply called the petitioner twice or thrice, and put certain questions, and elicited certain informations, but no charge sheet was served, and no opportunity was given to prove his case. Thus, the action is violative of principles of natural justice as well. 2 The learned Single Judge found, that on account of misappropriation of funds, for the safe custody of which, the petitioner was entrusted with responsibility, has failed to perform the duties satisfactorily, and he also discharged his duties dishonestly, by indulging in activities, which were grossly prejudicial to the interest of the Board, and misappropriated the amount of Rs. 71,911.50, for which he could not render any satisfactory explanation, during the course of departmental enquiry, as is evident from Annexure-11, and it was also held, that the report Annexure-11 cannot be construed to be against the principles of natural justice, equality, or fair play, rather full opportunity was allowed to the petitioner to prove his case, and therefore, the order directing recovery of the amount from the petitioner, cannot be said to be without jurisdiction. The orders were also not found to be passed on account of any malafides, bias, or ill will. It was also observed, that the petitioner was exonerated by way of conditional order, subject to the outcome of the final enquiry result, hence it can not be said, that the petitioner has been subjected to any double jeopardy. Interalia with these findings, the writ petition has been dismissed. Arguing the appeal, it was contended by the learned counsel for the appellant, that the learned Single Judge has gone wholly wrong in arriving at the conclusions, 3 inasmuch as the assumptions about exoneration being conditional is a patent misreading of the order Annexure-5, whereby the petitioner was exonerated. According to the learned counsel a bare reading thereof shows that no condition was retained therein. Then, so far as the aspect of the misconduct, or dishonesty, or prejudicial act are concerned, the findings have been arrived at merely on assumptions, as the petitioner was never subjected to any enquiry on these allegations, or charges, and thus the impugned order/report Annexures-10 to 12 can possibly not sustain. Then, arguing about double jeopardy also it was contended, that a combined reading of Annexure-3, 3A, and 11 makes it clear, that the subject matter sought to be enquired was exactly same, and on those allegations once having been exonerated vide Annexure-5, no further enquiry could be held, apart from the fact that as a matter of fact also no enquiry was ever held, as per the procedure prescribed for holding departmental enquiry, and notwithstanding Annexure-5, Annexure-11 and 12 have been passed, which clearly amounts to subjecting the appellant to double jeopardy. Learned counsel for the respondent, on the other hand, supported the impugned order. We have considered the submissions, and have gone through the record, i.e. the papers available on the file 4 of the writ. In our view, the whole contention of the learned counsel for the appellant is proceeding on the basic misconception; may be that the findings as recorded by the learned Single Judge may not be very correct, but then that is not the end of the matter. A look at the charge sheet Annexure-3 and 3A does show, that precise charges framed were, about the petitioner being in-charge of holding record, was called upon to produce the record, but he failed to produce, and that one member of the Municipal Board complained about irregularity, and that the petitioner also failed to give satisfactory answer. Thus, it was alleged, that he has committed serious irregularities. It is on these charges that vide Annexure- 5, the petitioner purports to have been exonerated by closing the enquiry. However, a look at Annexure-11 and 12 shows, that they are entirely different proceedings. From a look at Annexure-11, it is clear, that there were two complaints, being no. 2097/84 and 1357/84, which were lodged before the Anti Corruption Bureau, and the Anti Corruption Bureau investigated the matter, and submitted the report, whereupon the Dy. Director asked the Regional Assistant Director to enquire into the matter, whereupon the petitioner was called upon, and enquiry was held, and in that enquiry it was found, that the petitioner had withdrawn goods worth Rs. 71,911.50 under his signatures 5 from the store, but neither has used the material, nor has maintained any account. Thus, it was held that this amount is liable to be recovered from the petitioner. It may at once be observed, that the purpose of giving charge-sheet Annexure-3 and 3A was entirely different, inasmuch as consequent upon that charge sheet the petitioner could be dismissed from service, while the purpose of enquiry, culminating into Annexure-11, was only to enquire about the fact, as to whether any financial loss has been caused to municipality, and if caused by the petitioner, to recover the amount from him, which obviously was not intended to be by way of any punishment, or misconduct, in discharge of the duties. Significantly, it is nowhere shown by the petitioner that the goods worth Rs. 71,911.50 had not been withdrawn, under his signatures, nor is it his case, that he had utilised the goods, or has maintained any account. Thus, in our view, there is no question of the petitioner being subjected to any double jeopardy, and as is clear from the grounds taken in the writ petition, that the petitioner was called by the Regional Assistant Director, and information was sought from the petitioner, time and again, and thereafter the report Annexure-11 was submitted. In that view of the matter, it cannot be said, that in the matter of enquiring into the question, about the 6 municipality having suffered any loss, at the hands of the petitioner, which were required to be made up from the petitioner, any violation of principles of natural justice had been there, against the petitioner. Thus, though for reasons, different than those contained in the impugned judgment of the learned Single Judge, yet we do not find the petitioner to be entitled to any relief in the writ petition, and consequently we do not find any force in the appeal on merits. The same is, therefore, dismissed. ( MUNISHWAR NATH BHANDARI ),J. ( N P GUPTA ),J. 7