.^-S^ .Hal) ;1'^-H';^', ^ s, & !^y ,j\u' •4F^ HIGH COURT OF CHHATTISGARH : BILASPUR Writ Petition (S) No.31 of2005 Ramnarayan Sharma 'rsus The State of Madhya Pradesh & Others Post for pronouncement of the judgment and order on^-3-2009 Sd/- Satish K. Agnihotri Judge PETITIONER HIGH COURT OF CHHATTISGARH : BILASPUR Writ Petition (S) No.31 of 2005 Ramnarayan Sharma, aged about 48 years, son of Shri Rambharose Sharma, resident of village and post Narharpur, Tahsil Kanker, District Bastar. RESPONDENTS Versus 1. The State of Madhya Pradesh, through Secretary, General Administration Department, Vallabh Bhawan, Bhopal (MP). 2. The Coltector, Bastar, Jagdalpur. 3. The Commissioner, Bastar Division, Jagdalpur. 4. The Departmental Enquiry Officer-cum-Dy. Collector, Bastar, Jagdalpur, District Bastar. (Writ petition underArticle 226 and 227 of the Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Ms. Deepali Pandey, counsel for the petitioner. Ms. Smita Ghai, Panel Lawyer for the State/respondents. ORDER (Passed on thisW day of IWarch, 2009) Challenge in this petition is to the orderdated 29-1-1985 (Annexure - P/1) passed by the respondent No.2 Collector, Bastar, in a departmental proceeding whereby the petitioner was removed from the service with recovery of Rs.1,0007- from the Provident Fund of the petitioner and the order dated 25-4-1985 (Annexure - P/2) passed by the respondent No.3 Commissioner, Bastar Division whereunder the appeal filed by the petitioner was dismissed. The petitioner also challenges the validity of the show cause notice dated 25-11-1980 (Annexure - P/3) issued by the Dy. Coltector for Collector, Bastar. , 2) The indisputable facts, in nutshell, as projected by the petitioner, are that during the relevant period the petitioner was working as Naib Nazir in the Court of the Tahsildar, Kanker, the then District Bastar. A notice dated 28-4-1978 (Annexure - P/4) was issued to the petitioner to the effect that an ^ ffl] 1! ]» m«r amount of Rs.10,000/- has not been returned by the petitioner to the Naib Tahsildar that amounts to misappropriation of fund, as in the cash book insteaa of Rs.2,438/- itwas written as Rs.1,438/-. The petitioner in his reply dated 30-5-1978 (Annexure - P/5) denied the allegations. The petitioner submitted in his reply that he has not committed any misappropriation of fund. Thereafter, an enquiry was initiated. The petitioner was served with charge sheet along with list of witnesses, list of documents and statement of facts on 2-8-1979. The petitioner was granted 15 days time to submit his reply. The then Dy. Collector, Kanker was appointed as Enquiry Officer and the then Tahsildar, Kanker was appointed as Presenting Officer on 18-10-1979 (Annexure - P/8). On enquiry, it was found that the charge of defalcation of Rs.1,000/- against the petitioner was proved. Second show cause notice was also issued to the petitioner along with a copy of the enquiry report proposing punishment of removal and a sum of Rs.1,000/- was directed to be deducted from the Provident Fund of the petitioner, The order of punishment of imposition of removal from service was passed on 29-1-1985 (Annexure - P/1) by the then Collector. Being aggrieved, the petitioner preferred an appeal before the Commissioner, Bastar Division. The Commissioner after having considered the appeal of the petitioner dismissed the same by order dated 25-4-1985 (Annexure - P/2). Thus, this petition. 3) The main ground of challenge in this petition is that the impugned orders dated 29-1-1985 (Annexure - P/1) and 25-41985 (Annexure - P/2) are illegal, arbitrary and pen/erse. The enquiry. report submitted by the respondent No.4 was based on oral evidence of Naib Tahsildar overlooking the documentary evidence. The statement of R.K. Pandey was not recorded in the preliminary enquiry. Thus, no opportunity was afforded to the petitioner to cross-examine the witness namely, R.K. Pandey, Reader of the Court of Naib Tahsildar. The Enquiry Officer further ignored the fact that Naib Tahsildar deposited a sealed packet containing Rs.9,106/- for safe custody on 8-1-1976. with the petitioner and had obtained the acknowledgement. On 9-1-1976 the Reader to the Court of Naib Tahsildar had obtained the sealed packet containing Rs.9,106/- and acknowledged the same on the dak book. The fact that the cash book of Court of Naib Tahsildar was maintained and kept by the Naib Tahsildar himself or'by his Reader was ignored. Thus, the mistake in the cash book was either done by the Naib Tahsildar himself or by his Reader. The petitioner was not :1LL granted opportunity to examine his defence witnesses. Thus, the enquiry report i's perverse and deserves to be setaside. 4) Ms. Pandey, learned counsel appearing for the petitioner would submit that the petitioner was not responsible in any way, as the cash book was to be maintained by the Naib Tahsildar himself or by his Reader. Due to calculation mistake made by the Reader an amount of Rs.9,106/- was wrongly written as Rs.8,106/-. The amount of Rs.9,106/- was received and returned by the petitioner in a sealed packet and the endorsement to that effect was also made. Thus, the allegation of misappropriation of fund cannot be established. The Enquiry Authority has relied on the statement of R.K. Pandey recorded at preliminary stage without affording opportunity of cross-examination to the petitioner. 5) Per contra, Ms. Ghai, learned counsel appearing for the State/ respondents supported the enquiry report as also the orders passed by the Collector and the Commissioner. Learned counsel would submit that the petitioner was given full opportunity for production of his witnesses, but the petitioner failed to examine any witnesses on his behalf. Thus, the enquiry report cannot be faulted with. 6) I have heard tearned counsel appearing for the parties, perused the pleadings and the documents appended thereto. 7) It is not found that the enquiry report is based on the statement made by R.K. Pandey during preliminary enquiry. Thus, the allegation that the finding was recorded on the basis of statement made by R.K. Pandey, Reader to the Court of Naib Tahsildar without affording opportunity to the petitioner to cross-examine the said witness is baseless and is contrary to the facts. The then Naib Tahsildar Jain was examined and the petitioner was afforded full opportunity of hearing. The petitioner has not made any application or has requested to examine his witnesses, despite opportunities granted to him. Thus, the finding recorded by the Enquiry Officer is neither perverse nor illegal. The Enquiry Officer has rightly come to the conclusion that the petitioner having taken advantage of mistake in the entry of cash book (Article "C") misappropriated a sum of Rs.1,000/- as by mistake in the cash book instead of Rs.2,438/-, a sum of Rs.1,438/- was recorded. ; 8) In view of the foregoing, 1 do not find any infirmity or illegality in the findings recorded by the Enquiry Officer. 9) As far as the imposition of removal from service and recovery of Rs.1,000/- from the Provident Fund ofthe petitioner is concerned, it cannot be held as disproportionate. It is a matter of trust. If the petitioner has taken advantage of some mistake, the Government has lost trust in him. 10) In B.C. Chaturvedi vs. Union of India and Others the Supreme Court observed as under: "12.....When the aythority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case. 18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact- finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to Jmpose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The hligh Court/Tribunal, while exercising the power of Judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High CouriyTribunal, it would •~ appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment ' with cogent reasons in support thereof. '(1995) 6 SCG 749 11) In U.P. State Road Transport Corporation vs. Vinod Kumar , the Supreme Court observed as under : "10.....This Court in a number of judgments has held that the punishment of removal/dismissal is the appropriate punishment for an employee found guilty of misappropriation of funds; and the courts should be reluctant to reduce the punishment on misplaced sympathy for a workman. That, there is nothing wrong in the employer losing corifidence or faith in such an employee and awarding punishment of dismissal. That, in such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering with the quantum of punishment. Without burdening the judgment with all the judgments of this Court on this point, we may only refer to a recent judgment in Divisional Controller, N.E.K.R.T.C. v. H. Amaresh wherein this Court, after taking into account the earlier decisions, held in para 18 as under: (SCC p. 193) "18. In the instant case, the misappropriation of the funds by the delinquent employee was only Rs 360.95. This Court has considered the punishment that may be awarded to the delinquent employees who misappropriated the funds of the Corporation and the factors to be considered. This Court in a catena of judgments held thaf the loss of confldence is the primary factor and not the amount of money misappi'opriated and that the sympathy or generosity cannot be a factor which is impennissible in law. When an employee is found guilty of pilferage or of misapprophating the Corporation's funds, 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. The judgment in Karnataka SRTC v. B.S. Hullikatti was also relied on in this judgment among others. Examination of the passengers of the vehicle from '• whom the said sum was collected was afeo not essential. In our view, possession of the said excess sum of money on the part of the respondent, a (2008)-1 SCC115 a F— ^'^»-.; Gowri fact proved, is itself a misconduct and hence the Labour Court and the learned Judges of the High Court misdirected themselves in insisting on the evidence of the passengers which is wholly not essential. This apart, the respondent did not have any explanation for having carried the said excess amount. This omission was sufficient to hold him guilty. This act was so grossly negligent that the respondent was not fit to be retained as a conductor because such action or inaction of his was bound to result in financial loss to the appellant irrespective ofthe quantum. (underlining-is ours)" 12) Having applied the well settled principles of law as enunciated above to the facts of the present case wherein the petitioner is guilty of defalcation of Rs.1,000/- or loss to the public exchequer and, as such, this conduct amounts to breach oftrust within the purview of 'misconduct'. The penalty imposed on the petitioner does not shock the conscience of this Court. Thus, imposition of punishment upon the petitioner is just and proper warrants no interference. 13) For the reasons mentioned hereinabove, the petition is liable to be dismissed and it is hereby dismissed. No order asto costs. T--- Sd/- SatisbK.AgBib"tn Judge