IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5244 of 1996 SHASHI KANT CHOUDHARY, son of late Hira Choudhary, resident of village Rajeyan, P.S. Piro, District Bhojpur … Petitioner Versus 1. STATE OF BIHAR 2. Secretary cum Commissioner, Water Resources Department, Irrigation Bhawan, 3rd Secretariat, Patna 3. Director Revenue Administration Water Resources Department, Barrack No.6 Harding Road, Patna 4. Deputy Secretary cum Special Officer Water Resources Department Patna, Barrack No.5, Harding Road, Patna 5. Deputy Collector Revenue Division Irrigation Mohania, District Bhabhua … Respondents. ----- For the Petitioner : Mr. Ajay Kumar Thakur, Adv. For the State : Mr. Ashok Kumar Dubey, A.C. to AAG IX ----- P R E S E N T THE HON’BLE MR. JUSTICE MIHIR KUMAR JHA Mihir Kr.Jha,J. Heard Mr. Ajay Kumar Thakur, learned counsel for the petitioner and Mr. Ashok Kumar Dubey, learned A.C. to AAG IX, for the State. The prayer of the petitioner in this writ application reads as follows: “This is an application for issuance of writ/writs, order/orders, direction/directions quashing the order contained in Annexure 1 dated 3.7.1995 by which the petitioner has been dismissed from service and Annexure 2 dated 15.3.1996 by which the appeal filed by the petitioner against the order 2 contained in Annexure 1 has been dismissed or pass such other order or orders as this Hon’ble Court may deem fit and proper.” Mr. Thakur with reference to the aforementioned relief has submitted that the departmental proceeding which was conducted against the petitioner was full of procedural infirmities, inasmuch as neither the petitioner was given the relevant document nor the witnesses were examined so as to afford opportunity to the petitioner to cross-examine them. He has further submitted that the charge against the petitioner being ultimately reduced to misappropriation of a sum of Rs. 14,000/- and odd and when the said amount had already been deposited by the petitioner during the pendency of the departmental proceeding, the award of maximum punishment on him by way of his dismissal from the service, is also wholly disproportionate to the alleged misconduct. Counsel for the State, on the other hand, would submit that there was not a single application filed by the petitioner before the disciplinary authority and/or 3 enquiry officer demanding any document and as such, when the petitioner had also filed his show cause reply (written statement of defence to the memo of charge) without making any demand of such document the resultant enquiry cannot be said to be vitiated only on account of non-supply of documents. He would also submit that the charge in the present case of the petitioner was misappropriation of Government fund, inasmuch as certain deposits made with the petitioner in capacity of Revenue Inspector were not credited in the Government account and as such, there was no requirement for leading oral evidence, especially when the said charges were clearly proved with the help of documentary evidence. Continuing further learned counsel for the State has also submitted that when such grievance for the first time was raised by the petitioner before the appellate authority, the said authority in order to comply the principles of natural justice and abide by the doctrine of fair play had directed for an enquiry at the appellate stage wherein the petitioner was given full opportunity not only to place 4 his documents but also to look into all the documents which were either referred to by the Enquiry Officer or relied by the Disciplinary authority for inflicting the order of punishment. In this context he has also referred to the day to day order sheet of the appellate authority to support himself that the petitioner was given full and effective opportunity either in the matter of perusal of the documents or in the matter of examination of witnesses. He has also submitted that once six out of 18 charges relating to misappropriation of Government fund by the petitioner were conclusively proved there was no question of taking a lenient view only because the petitioner subsequently realizing his misconduct had deposited the amount in the Government Treasury. In this context he has placed reliance on a Division Bench Judgment of this Court in the case of Subhash Chandra Singh vs. the Bihar State Food & Civil Supply Corporation Ltd., reported in 2010(2) PLJR 342. Mr. Thakur, in reply, has submitted that even if the subsequent opportunity 5 given by the appellate authority is taken into consideration as compliance of principles of natural justice in course of a departmental enquiry, then also it would be found that one of the date i.e. on 2.3.1996 the enquiry was conducted in absence of the petitioner without any notice to him. He would, therefore, submit that it would not be correct to say that there was no procedural infirmity even in course of extended departmental enquiry before the appellate authority. In the opinion of this Court the plea of supply of documents to the petitioner has to be rejected, inasmuch as the counsel for the petitioner has not been able to show that when the memo of charge was served on the petitioner he had ever demanded any document so as to be prejudiced either in submitting his written statement of defence or in course of enquiry. As a matter of fact not a word in this regard has also been said in the writ petition as to which of the document being not supplied to the petitioner the enquiry got vitiated on account of prejudice caused to the 6 petitioner. The said infirmity even if accepted for a moment, was definitely cured by the appellate authority, inasmuch as it has been recorded in day to day order sheet of the appellate authority and in the first appellate order as well that the documents relating to deposit of amount, which was the subject matter of charge, when demanded by the petitioner in course of an appeal to be inspected, was made available by the Deputy Secretary who was authorized to conduct enquiry at the appellate stage as well. This aspect of the matter has again not been controverted in the writ application by making any specific pleading and therefore, this Court must hold that the plea of non- supply of document is only a plea of desperation of the petitioner which is usually taken in assailing any order of punishment in a departmental proceeding. The next submission of Mr. Thakur that no witnesses were examined in the original enquiry by the Enquiry Officer and that had resulted into prejudice to the petitioner is again to be noted for its 7 being rejected. There is no universal law that in a departmental proceeding the charges can be proved only when the witnesses are produced. A Division Bench of this Court in the case of Girija Nandan Singh vs. the State of Bihar & ors., reported in 1987 PLJR 95, has held that there can be an enquiry only on the basis of documents and examining of witnesses would not be a condition precedent for conducting a departmental proceeding. Yet again this submission has to be tested on the ground of prejudice. The petitioner nowhere before the Enquiry Officer had claimed that if certain oral evidences were led, his defence could have been established. It is true that in a departmental proceeding when the witnesses are to be examined for establishing the charge, the presenting Officer owes a responsibility to produce his witnesses but if the presenting Officer straightway produces the documents to prove the charge and the delinquent wants to prove his innocence by recording statement of witnesses, the Enquiry Officer has to afford 8 opportunity for production of such defence witnesses. Apparently in this case no such prayer was made by the petitioner for production of any defence witness before the original Enquiry officer. Once this aspect becomes clear the prejudice so alleged by the petitioner gets automatically answered as was held by the Apex Court in the case of State Bank of Patiala vs. S.K.Sharma, reported in A.I.R. 1996 S.C. 1669. This infirmity, however, again was cured by the appellate authority, inasmuch as when a grievance to this extent was made by the petitioner before the appellate authority he had not only got a oral enquiry held but had also got the statement of Uma Shankar Gupta recorded in presence of the petitioner. Nothing however could be elicited from the cross-examination of the aforesaid Uma Shankar Gupta who has conclusively proved the charge by supporting not only the documents but had also denied the defence of the petitioner that such defalcated amount was handed over to Uma Shankar Gupta by the petitioner. The plea now being taken as with 9 regard to the petitioner being given no notice of the date of 2.3.1996 would also pale into insignificance, inasmuch as it has come in the record of the enquiry conducted by the Deputy Secretary of the Department as also in the enquiry report in the order of the appellate authority that after holding enquiry at the spot while recording the statement of the petitioner and Uma Shankar Gupta a date of hearing was fixed in the Headquarters at Patna on 2.3.1996 about which the petitioner was already given prior information. If the petitioner thereafter did not choose to appear before the Enquiry Officer, the Deputy Secretary, on 2.3.1996 and again appeared before the appellate authority on 11.3.1996 it would become clear that the petitioner was all along trying to only create a defence for avoiding obvious conclusion already arrived in course of enquiry as with regard to non-depositing of Government revenue to the tune of Rs. 14,000/- and odd, an aspect which had become clear to the petitioner in course of examination of Uma Shankar Gupta on 27.2.1996 and 28.2.1996. 10 This Court would also note that on 2.3.1996 when the Enquiry Officer had recorded either statement of Bhuneshwar Sharma or had looked into the remaining document which was not available at the site, the petitioner having deliberately avoided to remain present before the Enquiry Officer was not in any way prejudiced because when the Enquiry Officer had ultimately submitted his enquiry report on 4.3.1996 the further opportunity of hearing was given to the petitioner by the appellate authority on 11.3.1996 and on that date after hearing the petitioner the appellate authority had proceeded to pass the impugned order. There is no application of the petitioner filed before the appellate authority even on 11.3.1996, a date on which he was admittedly present that he had been prejudiced in any manner on account of his being given no notice of the date of enquiry 2.3.1996. In the departmental proceeding a blank proposition with regard to same being vitiated on account of non-supply of document or non-production of witness or not being allowed to cross-examine a particular 11 witness by itself cannot vitiate whole of the departmental proceeding as was held by the Apex Court in the case of State Bank of Patiala & ors. vs. S.K.Sharma, reported in AIR 1996 SC 1669, wherein the Apex Court had evolved the test as with regard to observance of principles of natural justice in course of departmental enquiry. Thus, in view of settled law by the Apex Court in the case of State Bank of Patiala (supra) this Court must hold that there was no procedural infirmity in the departmental enquiry so as to vitiate the order of punishment. It is also well settled that this Court cannot go into the merits of the charges and limited judicial review to such order of punishment after conducting a departmental proceeding is only confined to procedural infirmities including violation of principles of natural justice. Reference in this connection may be made to the judgment of the Apex Court in the case of B.C.Chaturvedi vs. Union of India & ors., reported in (1995) 6 SCC 749. The last submission of Mr. Thakur 12 as with regard to proportionality of punishment can be appreciated only in the backdrop of the fact that the petitioner was facing charges of misappropriation of Government fund. The embezzlement of Government fund even for a temporary period is an offence in the Indian Penal Code and therefore, to say that it will not be a misconduct on the part of a person authorized to collect revenue on behalf of the Government and that he may deposit the same at any point of time would only encourage indiscipline apart from being in teeth of the requirement of the provisions of Bihar Government Servant Conduct Rules and Bihar Treasury Code. Every Government servant Incharge of revenue is required to account for the Government revenue under his custody on a daily basis as is the prescribed procedure in Bihar Financial Rlules. Thus, the petitioner being the Revenue Inspector if he had deposited the Government revenue after pocketing it for a long period and in fact not till the memo of charge was framed against him, cannot take a defence of his being absolved from the 13 charges only on the ground that he had ultimately deposited the defalcated amount. Counsel for the State in fact is correct in relying on the ratio of the judgment of this Court in the case of Subhash Chandra Singh (supra) based on the earlier judgment of the Apex Court in the case of State of U.P. vs. Harendra Arora & anor., reported in (2001) 6 SCC 392, as also in the case of Divisional Controllers, KSRTC (NWKRTC) vs. A.T.Mane, reported in (2005) 3 SCC 254 wherein it was held that: “When an employee is found guilty of misappropriating the Corporation’s fund there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal.” This Court would respectfully agree with the law laid down by the Division Bench in the case of Subhash Chandra Singh (supra) wherein their Lordships had held as follows: “12. Learned counsel for the respondent has rightly relied on the judgment of the Supreme Court in the case of Divisional Controller (supra) wherein the Supreme Court has observed that 14 when an employee is found guilty of misappropriating the Corporation’s fund, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefore with the quantum of punishment. Paragraph nos. 12 and 13 are reproduced hereinbelow for the facility of quick reference: 12. Coming to the question for quantum of punishment, one should bear in mind the fact that it is not the amount of money misappropriated that becomes a primary factor for awarding punishment; on the contrary, it is the loss of confidence which is the primary factor to be taken into consideration. In our opinion, when a person is found guilty of misappropriating the Corporation’s funds, there is nothing wrong in the Corporation losing confidence or faith in such a person and awarding a punishment of dismissal. 13. This Court in the case of B.S. Hullikatti held in similar circumstances that the act was either dishonest or was so grossly negligent that the respondent 15 therein was not fit to be retained as a conductor. It also held that in such cases there is no place for generosity or misplaced sympathy on the part of the judicial forums and thereby interfere with the quantum of punishment.” Thus, considering the matter from all possible angles this Court would not find any scope for showing any leniency towards the petitioner against whom the charges of misappropriation of Government fund was proved beyond hilt. That being so, this application is wholly misconceived and is, accordingly, dismissed. (Mihir Kumar Jha,J.) Patna HighCourt Dt.1stJuly,2010 A.F.R./ Surendra.