IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8970 of 2006 --------- BHUWAN MOHAN SHARMA S/O LATE SHATRUGHAN PRASAD SINHA, RESIDENT OF VILLAGE- PANDARAK P.O.+P.S.-PANDARAK, DISTRICT-PATNA.PRESENTLY ACCOUNTS CLERK, JHARKHAND STATE ELECTRICITY BOARD, ENGINEERING BHAWAN, H.E.C. DHURWA, RANCHI,(JHARKHAND). -------- PETITIONER Versus 1.THE BIHAR STATE ELECTRICITY BOARD, PATNA THROUGH ITS CHAIRMAN, VIDYUT BHAWAN, JAWAHAR LAL NEHRU MARG/BAILEY ROAD, PATNA-1 2.THE CHAIRMAN CUM APPELLATE AUTHORITY, BIHAR STATE ELECTRICITY BOARD,PATNA. 3. THE SECRETARY,BIHAR STATE ELECTRICITY BOARD, PATNA 4. THE GENERAL MANAGER CUM CHIEF ENGINEER, PESU,PATNA 5. THE JOINT SECRETARY(GENERAL ADMINISTRATION DEPARTMENT), BIHAR STATE ELECTRICITY BOARD VIDYUT BHAWAN, PATNA-1. 6. THE ELECTRICAL EXECUTIVE ENGINEER, ELECTRIC SUPPLY DIVISION, BANKIPUR, PATNA. 7. THE DEPUTY DIRECTOR (PERSONNEL) CUM ENQUIRY OFFICER, BOARD HEADQUARTER, BIHAR STATE ELECTRICITY BOARD,PATNA. 8. THE ASSISTNAT ELECTRICAL ENGINEER (REVENUE) ELECTRIC SUPPLY DIVISION,BANKIPUR, PESU, PATNA -------- RESPONDENTS ---------- FOR THE PETITIONER; MR. VISHWANATH PRASAD SINHA, SR. ADVOCATE M/S A.K.ARUN,S.K.SINGH & S.R.PANDEY,ADVOCATES FOR THE BIHAR STATE Mr. R.P.SINHA,ADVOCATE ELECTRICITY BOARD: FOR THE JHARKHAND STATE ELECTRICITY BOARD: Mr. DHRUBA MUKHERJEE, ADVOCATE. --------- 5 20.10.2008 Petitioner is an employee who was working on the post of Accounts Assistant under the respondent Bihar State Electricity Board. For certain acts of omission and commission an enquiry was held and based on the findings of guilt an order of - 2 - punishment reverting him to the post of Junior Account Clerk and a few other related punishment has come to be passed against him. The reason for filing the present writ application is the order of punishment dated 28.12.2004 contained in annexure-9. The writ application also challenges the order passed by the appellant authority which is dated 2.6.2005 and is contained in annexure 11. Both these orders therefore are under challenge in the present writ application. Petitioner was holding the post of Accounts Assistant in the Electrical Supply Division of Bankipur which is the Electric Supply Circle, Patna. Based on a complaint received by the Board from a consumer a preliminary enquiry was held and it was found that though consumer had deposited a sum of Rs. 6458/- against Receipt No. 0633913 dated 7.4.2001, a sum of Rs. 1458 was only shown on the daily collection register and Rs. 5000/- was not accounted for because this amount was shown to be due in the next bill of the consumer. Since the petitioner was the concerned person saddled with the responsibility of receiving payment on the date and time the authority decided to issue a chargesheet for defalcation against him. The chargesheet is contained in annexure-2. Petitioner filed his show cause to the chargesheet and tried to escape the responsibility but the authority did not find the explanation offered by the petitioner worthy enough and therefore a detailed enquiry came to be held by appointing an enquiry officer. The enquiry officer’s report has - 3 - been brought on record as annexure-6 which after due considerations of the materials which has came during enquiry has found the charge of defalcation as proved against the petitioner. The disciplinary authority therefore vide annexure-7 dated 25.2.2004 issued a second show cause as to why the order of demotion to the lower post as well as non payment of salary except subsistence allowance for the period of suspension be not passed. Petitioner in his show cause again reiterated his position and also tried to raise the plea of discrimination by stating that where defalcation of larger amount of monies has been alleged, certain persons had not been suitably dealt with but for a small amount of defalcation of Rs. 5000/- a serious punishment of demotion in service etc. was passed despite 27 years of clean service record in this regard. Keeping the evidence which had come against the petitioner and the findings recorded against the petitioner the disciplinary authority passed the order of punishment which is annexure-9 and is dated 28.12.2004. Three punishments have been imposed upon the petitioner (1) he has been reverted to the post of Junior Accounts Clerk from the date of issuance of the order, (2) his pay was fixed at the initial stage of Junior Accounts Clerks and (3) he would be entitled only to subsistence allowance for the period of suspension and no salary would be admissible to him in this regard. Petitioner’s appeal before the Chairman of the Board did not beget him the relief he was looking forward to because the - 4 - appellate authority vide order dated 2.6.2005 contained in annexure-11 had rejected his appeal and the order was communicated to him. Learned Senior counsel appearing on behalf of the petitioner submits that the enquiry was not conducted properly. He submits that neither the so called consumer on whose complaint the enquiry was initiated was examined nor was the receipt in original produced which could certify that it was the petitioner who had issued the receipt after receiving the so called amount from the consumer. He further submits that the enquiry officer did not appreciate the evidence and material in its true perspective and therefore the finding of guilt came to be recorded against him. The Court has been taken through the enquiry report in quite a detail. Efforts has been made to show that there was a possibility of mischief by some person already deputed for the job at the relevant time and a short absence of the petitioner, may be to attend other work or to attend a call of nature could have been utilized by somebody else instead of the petitioner. Some accusing finger was also pointed out against two persons who were supposed to be computer operators and they were engaged by the company for installation and running of the computer. But unfortunately for the petitioner there is evidence to show that a sum of Rs. 6458/- was deposited by a consumer and this figure was not properly reflected in the daily collection register. The receipt issued to the consumer by the petitioner did - 5 - show a figure of Rs. 6458/- but since this was not truly recorded in the daily collection register of the Board, naturally the Revenue Department of the Board treated it to be a short payment and raised a bill of Rs. 5000/- against the concerned consumer in his next bill. There is a discrepancy shown with regard to the amount deposited by the consumer, the receipt issued in this regard and the entry made in the daily collection register. Petitioner has been found to be the person who had issued the receipt. Therefore all his explanations of mischief by some other persons or his effort to disown the responsibility of issuance of the receipt did not cut much ice. The evidence therefore compelled the enquiry officer to reach only one conclusion that that the petitioner had misappropriated a sum of Rs. 5000/- paid by the consumer against his electric charge. The contention of learned senior counsel that in absence of the original receipt or examination of the consumer the enquiry cannot be said to be properly conducted seems to be misplaced because the necessity for examining the consumer in person did not arise because he had given a complain to the authority with regard to deposit made by him for the bill in question and there was reflection of arrear in his next bill even after payment. He had provided a copy of the receipt and the enquiry officer had carried out a detailed enquiry with regard to the defalcation, in question by other records available which were relied upon as would be evident from the material which has been - 6 - annexed with the chargesheet issued to the petitioner. Large number of other witnesses had also been examined. It has also been recorded that an FIR was also lodged against the petitioner in this regard after his complicity or involvement in the defalcation was found. If there is preponderance of evidence which has been duly discussed by the enquiry officer and the guilt rests on the shoulder of the petitioner then it is difficult for this Court to find holes in the same on specious plea of not holding the enquiry in the right prospective. The challenge therefore to the enquiry or the proceeding thrown by the petitioner is negated. The second limb of argument on behalf of the petitioner is that with 27 years of clean service, the punishment imposed upon him as well as confirmation of the punishment by the appellate authority, is unduly harsh and excessive and therefore is violative of the principle of proportionality. Not only this learned counsel has also tried to demonstrate that even the authority did not consider the case of the petitioner from this angle and, in fact, rereading of annexure-11 would show that there has been actually no application of mind by the appellate authority at all. A look at the order passed in appeal would show that the appellate authority even did not know that the petitioner was “demoted to the lower rank” and had not been dismissed from service but the order in appeal states that the “punishment of dismissal” awarded by the Board vide dated 28.12.2004 (annexure-9) has been examined and considered at length and the - 7 - appellate authority did not find any material to reconsider the order of punishment. There seems to be an error in the order of appellate authority in this regard. Even though the earlier part of the order talks of punishment of demotion, reduction to the initial stage of scale of pay on the demoted post and withholding of salary except subsistence allowance the punishment of dismissal has been talked about in the impugned order contained in annexure-11. The Court does get an impression that the order was a kind of mechanical order which has been passed at the level of the appellate authority. The Court taking into consideration the fact that the petitioner has had 27 years of clean service record and the aberration of defalcation of Rs. 5000/- which has been found against him ought to have compelled the disciplinary authority as well as the appellate authority to consider whether the punishment in question was excessive vis-à-vis the misconduct. The Court gets a feeling that the disciplinary authority as well as the appellate authority have used the punishment more as deterrent and a lesson to other employees rather than punishing the petitioner based on the findings and materials recorded against him. The Court therefore is of the opinion that since the appellate authority has not applied fully to the issue and has passed a kind of mechanical order with obvious error in the same, the appellate order dated 2.6.2005 contained in annexure-11 is hereby quashed. A direction is hereby issued to the Chairman, - 8 - Bihar State Electricity Board that he shall consider the appeal of the petitioner afresh keeping in mind whether any other order of punishment in lieu of annexure-9 could be passed against the petitioner keeping in mind the long service he has rendered and the nature of charge alleged and found against him. This writ application is allowed with a direction that appellate authority would pass an appropriate order preferably within a period of three months from the date of communication or production of a copy of this order. RPS (Ajay Kumar Tripathi,J.)