IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 287 (S/S) of 2005 Digambar Singh Negi S/o Late Shri Fateh Singh Negi R/o Jaunpur, Ward No. 2 Kotdwar, District Pauri Garhwal. ….....Petitioner. Versus 1. State of Uttaranchal through Secretary, Medical, Health & Family Welfare, Uttaranchal Dehradun. 2. Director General Medical, Health and Family Welfare Government of Uttaranchal Dehradun. .……….Respondents. Shri Rajendra Dobhal, learned counsel for the petitioner. Shri B.K. Gupta, learned Additional Advocate General for the respondents. Hon’ble Prafulla C. Pant, J. By means of this writ petition, moved under Article 226 of Constitution of India, the petitioner has sought writ in the nature of certiorari quashing the impugned order dated 23.04.2003, whereby respondent No. 2, after departmental enquiry, has censured the petitioner and directed that adverse entry be made in his service record. It is further directed by respondent No. 2 that one annual increment in petitioner’s pay be withheld for five years. The petitioner has also challenged order dated 25.01.2005, passed by respondent No. 1, whereby departmental appeal of the petitioner is dismissed against the aforesaid order passed by respondent No. 2. 2. Heard learned counsel for the parties and perused the affidavit, counter affidavit and rejoinder affidavit. 2 3. Brief facts of the case are that the petitioner is a Junior Clerk in the office of Chief Medical Officer, Pauri Garhwal. While he was posted in the office of Chief Medical Superintendent, Kotdwar, District Pauri Garhwal, in the year 2001, he was placed under suspension vide order dated 24.04.2002, by respondent No. 2 on the charges of financial irregularities. Charge sheet (copy annexure-2 to the writ petition) was served on him, which contained two charges. In charge No. 1, it was mentioned that after transfer of Dr. Hari Das Verma, Chief Medical Superintendent of Joint Hospital, Kotdwar, in July 2001, the petitioner stopped his colleague Smt. Sanju Negi and Ward-boy Manjoor Ahmad from taking the certificate of handing over of charge by Dr. Hari Das Verma to treasury and thereby created obstruction in the official duty. Second charge mentioned in the charge sheet is that after Dr. H.D. Verma, handed over the charge on 06.07.2001, and from that date to 18.07.2001, the petitioner got signed several bills and sent to the treasury, withdrew the amount, made necessary entries in the cash books and as such, committed financial irregularities. 4. Petitioner earlier filed writ petition No. 1303 (S/S) of 2003, challenging the punishment order, which was disposed of vide order dated 30.10.2003. While dismissing said writ petition, it was directed by this Court that departmental appeal may be filed by the petitioner and the authority concerned may consider the same on merits. In compliance of said order, impugned 3 order dated 25.01.2005, is passed by respondent No. 1, whereby departmental appeal of the petitioner is dismissed on merits. The order of punishment and the order passed in departmental appeal, are challenged before this Court on the grounds that the petitioner was not at fault in the impugned transactions of submitting bills to the treasury and withdrawing the amount as the same was done under the directions of superior officers and the petitioner had no motive to do any financial irregularity nor is benefited by it. 5. In the counter affidavit, filed on behalf of the respondents, it is admitted that petitioner was a Junior Clerk in Joint Hospital, Kotdwar till 18.07.2001. It is also admitted that Dr. Hari Das Verma, who was Chief Medical Superintendent of said hospital was transferred and handed over the charge on 06.07.2001. It is stated in the counter affidavit that Dr. H.K. Srivastava, Additional Director, assumed the charge of Chief Medical Superintendent of the hospital. However, it is stated that the petitioner committed negligence and carelessness in getting signed the bills from the transferred officer and sending to the treasury and withdrawing the amount pertaining to the bills. However, it is nowhere stated that any part of amount withdrawn was either embezzled or misappropriated. 6. In the rejoinder affidavit, averments made in the writ petition are reiterated. 4 7. Learned counsel for the petitioner argued that there was no motive on the part of the petitioner to commit financial irregularity. It is further contended that whatever has been done by the petitioner, it was done in compliance of the orders of superior officers. Attention of this Court is drawn to annexure-8 to the writ petition, which is copy of explanation dated 28.09.2002, submitted by Dr. Hari Das Verma, who handed over the charge as Chief Medical Superintendent in July 2001. In para-2 of his explanation, Dr. Hari Das Verma has stated that under orders of Shri H.K. Srivastava, Additional Director, the bills were signed and sent to treasury, after handing over of the charge (by Dr. Verma). Said para-2 is being reproduced below:- ÞfuosnuiwoZd dguk gS fd MkW0 ,p0ds0 JhokLro vij funs’kd ikSM+h egksn; us fnukad 06-07-2001 dks lk;adky 7 cts gh vius ys[kk fyfid Jh fnxEcj flag usxh ls pktZ lkVhZfQdsV cSad ,oa Vªstjh] dksV}kj dks u Hkstus ds fy;s dgk Fkk ,oa eq>ls fpfdRlky; ds leLr deZpkfj;ksa dk osru vkgj.k gsrq pSEcj esa cSBs fpfdRlk vf/kdkfj;ksa ds le{k dgk Fkk ,oa ys[kk fyfid Jh Mh0,l0 usxh ls esjs }kjk fcyksa ij gLrk{kj djokdj fcy ikl djkus ds fy;s dgk Fkk] vr% mlus leLr fcyksa ij fnukad 7&7&2001 dks esjs gLrk{kj djkdj fcy Vsªtjh fHktok fn;s Fks] D;ksafd mDr fcyksa esa Vsªtjh }kjk Mh0Mh0vks0 dk dksM uEcj cny tkus dk vkCtsD’ku yxk fn;k FkkAß The above mentioned explanation of Dr. Hari Das Verma undoubtedly supports the petitioner to the extent that the petitioner had no motive to commit the financial irregularity, as whatever was done it was done 5 in pursuance of the orders of superior officers. However, in the opinion of this Court, the petitioner cannot escape the liability that he got signed the bills and sent them to treasury from an unauthorised person (Dr. Hari Das Verma, who had already handed over the charge), after withholding his charge certificate. As such, the petitioner cannot say that he is totally innocent and committed no irregularity. But it is certainly clear from the above mentioned explanation of Dr. Hari Das Verma that petitioner had no motive to commit any financial irregularity and whatever was done it was done in compliance of the directions of superior officers so that the bills are not held up unnecessarily and payment is not delayed. 8. In this connection, it is necessary to mention here that it has also come on the record that after 06.07.2001, Dr. Hari Das Verma handed over the charge, his successor Dr. Nautiyal took charge only on 12.07.2001, and in between Additional Director had taken over the charge for a temporary period. 9. In the circumstances, this Court is of the view that censure entry and the adverse entry directed to be made by respondent No. 2, and affirmed by respondent No. 1 in the departmental appeal, need no interference but another punishment of stoppage of annual increment for a period of five years on same charge is harsh and disproportionate to the negligence committed by the petitioner. Therefore, this writ petition is partly allowed. Punishment of awarding censure entry and 6 direction to make adverse entry in petitioner’s service record, by respondent No. 2 and affirmed by respondent No. 1, is upheld. However, further punishment of stoppage of one increment for five years is liable to be quashed and the same is quashed. The petitioner shall be paid arrears, if not already paid, relating to the increment withheld. (Prafulla C. Pant, J.) Dt. 05.05.2008 Sweta