WP(C) 1652/2004 BEFORE THE HON’BLE JUSTICE MR B.K. SHARMA JUDGEMENT AND ORDER (ORAL) Heard Mr. P. Kataky, learned counsel for the petitioner as well as Ms R. Chakraborty, learned Addl. Sr. Govt. Advocate. 2. The petitioner is aggrieved by the Annexure-8 order dated 13.2.2004 by w hich pursuant to a departmental proceeding, he has been punished with stoppage o f 2 (two) increments without cumulative effect. The departmental proceeding was initiated for misappropriation of Govt. money to the tune of Rs. 1,71,619.76. In the order of penalty, it was also stipulated that the misappropriated amount wo uld be recovered in three equal instalments or on monthly instalments keeping in view the date of superannuation of the petitioner. 3. The grounds on which the order of penalty has been put to challenge are as follows :- (i) Although the enquiry was duly conducted and the petitioner properly defe nded his case and he was with the expectation that he would be acquitted of the charges, but by the impugned order dated 13.2.2004, the aforesaid penalty was im posed. (ii) The petitioner having not been issued with the 2nd show cause notice bef ore imposition of penalty and he also having not been furnished with the copy of the enquiry report, the impugned order of penalty is not sustainable in law. (iii) The departmental proceeding could not have been initiated after 5/6 year s of the alleged misappropriation. (iv) The anomalies in the financial transaction cropped up not because of any fault on the part of the petitioner but because of the fault of the Manager and Salesmen. 4. The respondents have filed their counter affidavit justifying the depart mental proceeding initiated against the petitioner with the imposition of the im pugned order of penalty. As regards non-furnishing of the copy of the enquiry re port, it has been stated that the order of penalty was imposed considering the e vidence on record and that non-furnishing of the same did not result in any prej udice to him. 5. I have considered the submissions made by the learned counsel for the pa rties and the entire materials on record including the enquiry proceeding file a s has been produced by Ms. R. Chakraborty, learned State Counsel. 6. The petitioner was placed under suspension by order dated 6.2.2000 pendi ng drawal of a departmental proceeding. The said order of suspension was revoked pursuant to the order dated 27.6.2001 passed by this Court in WP(C) No. 4458/20 01. By the said order, a direction was issued to dispose of the representation d ated 7.3.2001 that was submitted by the petitioner praying for revocation of the order of suspension. However, the said order was projected by the petitioner as a direction for his re-instatement in service and accordingly by his represent ation dated 4.7.2001 urged upon the authority to reinstate him in service. In th e said representation, it was stated by the petitioner that this Court upon peru sal of the documents, by its speaking order dated 27.6.2001 directed for reinsta tement of the petitioner in service. 7. As many as four charges were leveled against the petitioner and he was s erved with the charge sheet dated 1.8.2001. Along with the charge sheet, the sta tement of allegation and the lists of documents and witnesses were also furnishe d to the petitioner. The charges were as follows :- Charge No.1 : That while you were the Secretary of Chah Mazdoor S.S. Ltd. You misappropriated a sum of Rs. 1,37,548.76 from the fund of the Society as per bal ance sheet for the year 1994-95, for your personal gain. You are therefore charged with misappropriation of public money for your persona l gain. Charge No. 2 : That while you were working as Secy. At Rajapukhuri S.S. Ltd. Yo u misappropriated a sum of Rs. 38,065.10 from the fund of the said Society as pe r audited balance sheet for the year 1997-98 for your personal gain. You are therefore charged with misappropriation of Society’s money and violation of office rule and procedures. Charge No.3 : That while you were the Secretary of Rajapukhuri S.S. Ltd. You r eceived sale proceed of Rs. 8,282.00, but the same amount was not entered in the cash book. You are therefore charged with negligence of your duties and misappropriation of Societies fund. Charge No.4 : That while you were working at Rajapukhuri S.S. Ltd. As Secy. Yo u received share admission fee of Rs. 356.00, but you did not enter it in the ca sh book. 8. In response to the said charges, the petitioner by his reply dated 19.9 .2001 denied the same and thereafter the Disciplinary Authority being not satisf ied with the said reply, ordered for a departmental enquiry appointing the Deput y Registrar of Cooperative Societies as the Inquiry Officer. In the mean time, t he petitioner prayed for his transfer from Mangoldoi Sub-Division of Darrang Dis trict to Azad Samabay Samiti Ltd. Of Barpeta District. The request of the petiti oner was strongly recommended for favourable consideration by the Minister, Char Area Development, vide his endorsement dated 4.2.2002. The departmental authori ty readily agreed to the proposal and transferred him to his choice place of pos ting. Be that as it may, in due course, the enquiry proceeding was conducted and the petitioner submitted another written statement on 22.10.2001. 9. The Inquiry Officer conducted the enquiry in presence of the witnesses i ncluding the petitioner and as recorded in the proceeding dated 10.4.2002, the p etitioner admitted the charge of misappropriation of the amount in question. Alt hough, he had objected to the audit report in which the amount misappropriated w as indicated but on being asked in cross examination, he could not answer the ch arge relating to misappropriation and rather admitted that he would require to r eturn the amount in question. After the aforesaid enquiry proceeding, the Inquir y Officer submitted his report holding the petitioner guilty of all the charges, referred to above. Thereafter, the Disciplinary Authority passed the impugned o rder dated 13.2.2004 imposing the penalty of stoppage of 2 (two) increments with out cumulative effect. 10. Considering the nature and gravity of the offence and / or misconduct on the part of the petitioner, it was a fit case for imposition of major penalty. However, for the reasons best known to the Disciplinary Authority, only a minor penalty of stoppage of two increments and that too without cumulative effect was imposed against the petitioner. As regards the order for recovery of the misapp ropriated amount, the same cannot be said to be by way of penalty, inasmuch as, pursuant to holding the petitioner guilty of the charge of misappropriation, it was within the domain and jurisdiction of the Disciplinary Authority to order fo r recovery of the said amount. 11. It was in the above circumstances, this Court while admitting the writ p etition, made the following observations :- The rule is also being issued on the question of adequacy of the penalty impose d. Therefore, if the findings of the disciplinary authority as regard the charge s leveled against the writ petitioner are upheld by this Court, this Court will proceed to examine further as to whether the penalty imposed should be enhanced. 12. As regards the plea of the petitioner that he was with the expectation t hat the enquiry report would be in his favour but the impugned order was beyond his such expectation, suffice is to say that mere expectation of the petitioner about the outcome of an enquiry proceeding cannot be a ground to set aside the e nquiry proceeding. As regards the delay in conducting the enquiry, each and very case will have to be considered on its own merit. The particular incident had o ccurred in 1995-96 and the misappropriation of Govt. money was detected on condu cting the audit. It was on the basis of the audit report, the petitioner was tak en up for a departmental proceeding and the charge sheet was issued on 1.8.2001. That apart, the petitioner had not shown any pre-judice caused to him on the gr ound of purported delay. Thus, the plea of the petitioner that because of the de lay, the enquiry proceeding was vitiated, is not at all acceptable. 13. Another ground on which the petitioner has challenged the entire proceed ing is that he was not responsible for misappropriation but it is the Manager an d the Salesman who were responsible for such misappropriation. Such a general pl ea taken in the writ petition does not get any support from the enquiry proceedi ng during which the petitioner did not make any accusation against the Manager a nd the Salesman. That apart, by attributing fault to the others, the petitioner cannot project that he was not responsible for the misconduct. 14. As regards the non-furnishing of the copy of the enquiry report, while i t is true that in the normal circumstances, a copy of the same is required to be furnished to the delinquent enabling him to make a representation against the s ame. Although, in the instant case, the petitioner was not furnished with the co py of the enquiry report but in absence of any pre-judice pleaded or shown by th e petitioner, because of non-furnishing of the copy of the enquiry report, this Court cannot adopt a mechanical approach to interfere with the order of penalty only on that ground. In this connection, I may gainfully refer to the decision o f the Apex Court reported in (1996) 3 SCC 364 (State Bank of Patiala and others Vs. S. K. Sharma), in which it has been held that violation of each and every fa cet of principles of natural justice, does not vitiate the enquiry. It has been held that principles of natural justice cannot be reduced to any hard and fast formula. The applicability depends upon the context and the facts and circumstan ces of each case. 15. In the aforesaid decision, the Apex Court has referred to its earlier de cisions reported in (1980) 4 SCC 379 (S.L. Kapoor Vs. Jagmohan) and (1984) 1 SCC 43 (K.L. Tripathi Vs. State Bank of India). In paragraph 22 and 24 of the decis ion, the Apex Court referring to the aforesaid two decisions, have quoted the fo llowing observations made therein :- In our view the principles of natural justice know of no exclusionary rule depe ndent on whether it would have made any difference if natural justice had been o bserved. The non-observance of natural justice is itself prejudice to any man an d proof of prejudice independently of proof of denial of natural justice is unnecessary. It will come from a person who has denied justice that the p erson who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possi ble and under the law only one penalty is permissible, the Court may no t issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because courts do not is sue futile writs. We do not agree with the contrary view taken by the Delhi Hig h Court in the judgement under appeal.\ \The basic concept is fair play in action administrative, judicial or quasi judi cial. The concept of fair play in action must depend upon the particular l is, if there be any, between the parties. If the credibility of a person who h as testified or given some information is in doubt, or if the versio n or the statement of the person who has testified, is, in dispute, right of cross- examination must inevitably form part of fair play in action bu t where there is no lis regarding the facts but certain explanation of the circumstances there is no requirement of cross-examination to be fulfille d to justify fair play in action. When on the question of facts there was no dispute, no real prejudice has been caused to a party aggrieved by an order, by absence of any formal opportunity of cross -examination per se does not invalidate or vitiate the decision arrived at fairly. This is more so when the party against whom an order has been passed does not dispute the fac ts and does not demand to test the veracity of the version of the credibility of the statement. 16. Above apart, the petitioner has not even obliquely stated in the writ pe tition as to what was the pre-judice caused to him because of non-furnishing of the copy of the enquiry report. As noted above, during cross examination, the pe titioner himself admitted that he was also responsible for misappropriation and that he would refund the same. In such a situation, the enquiry report based on the evidence including the own plea of the petitioner, even if had been supplied to the petitioner, could not have altered the position through the representati on of the petitioner. 17. For all the aforesaid reasons, I do not find any merit in the writ petit ion and accordingly the same is dismissed. The Disciplinary Authority may take a ppropriate action towards recovery of the amount from the pension of the petitio ner and other retirement dues, if not already recovered. 18. There shall be no order as to costs.