HIGH COURT OF JUDICATURE OF ANDHRA PRADESH THE HONOURABLE SRI JUSTICE V.ESWARAIAH WRIT PETITION No. 10896 OF 2000 Thursday, the Second Day of December, Two Thousand and Ten Between Sri B.Laxminarayana Petitioner AND The Divisional Manager, Girijana Cooperative Corporation Limited, Palwancha, Khammam District and others Respondents ORAL ORDER: The petitioner questions the order passed by the first respondent – Divisional Manager, dated 2.12.1997 in dismissing him from the service of the respondent Corporation from the post of Salesman, as confirmed by the Appellate Authority, second respondent herein by order dated 16.10.1999, as illegal and unsustainable. The facts of the case are that the petitioner was appointed as Salesman in the respondent Girijana Cooperative Corporation Limited and posted in Girijana Cooperative Marketing Society, Kukkunur, Khammam District, in the year 1985. While so, basing on the preliminary enquiry report, on the allegation that he has misappropriated Corporation fund to the tune of Rs.28,874.30 Ps., he was suspended from service on 26.6.1996 and enquiry was contemplated, appointing an Enquiry Officer to enquire into the charges. The Enquiry Officer issued charge memo vide Rc.No. B2/1286/96 dated 24.6.1996, framing seven charges directing me to submit explanation within fifteen days. The notice sent to the petitioner by registered post could not be served as he was not available. It is stated that the petitioner has refused to receive the charge memo and, therefore, the charge memo was pasted on the door of the house of the petitioner, but none of the local persons have come forward to stand as a witness for the substitute service. Therefore, another notice, dated 2.1.1997, was issued. It is stated that the notice was served on 4.1.1997 and accordingly, the petitioner appeared, but failed to submit any explanation either orally or in writing. Therefore, another notice was given, but the said notice was refused to be received by the petitioner. Thus, it is the case of the respondent that after issuing several notices directing the petitioner to appear before the Enquiry Officer, as the petitioner did not avail the opportunity given to him and as he has avoided intentionally to submit representation/explanation to the charge memo, it was construed that the petitioner was not interested to submit explanation and, as such, the Enquiry Officer submitted his report. The findings of the Enquiry Officer on various charges with regard to the misappropriation, were accepted by the Disciplinary Authority and as even after receiving the notice pursuant to the enquiry report, no explanation was submitted, dismissal order was passed dismissing the petitioner from the service of the Corporation as Salesman. Aggrieved by the same, the petitioner filed appeal before the Appellate Authority - second respondent herein and the Appellate Authority has confirmed the order of punishment passed by the Divisional Manager. Aggrieved by the same, this writ petition is filed contending that the so called misappropriation of funds of Rs.30,118/- along with interest, has already been paid by the petitioner and, therefore, the recovery proceedings were stopped by the Arbitrator in ARC No.14/96-97 dated 19.5.1998. The judgment in ARC 14/96-97 dated 19.5.1998 clearly speaks that the petitioner has accepted the temporary misappropriation of the said amount and paid back the same and ultimately the recovery proceedings have been dropped, as the case is settled out of the court and the petitioner has paid entire amount of Rs.30,119.60 Ps. as well as interest of Rs.1,500/- calculated at 18% p.a. and also paid costs of Rs.200/- to the respondent Corporation. Thus it is stated that for the temporary misappropriation, dismissal of the petitioner from service is excessive, arbitrary and disproportionate to the gravity of charges leveled against him. On the other hand, learned counsel for the respondent Corporation submitted that no doubt the petitioner has paid back the amount utilized by him to the tune of Rs.30,119/-, but the past conduct of the petitioner also goes to show that he has committed temporary misappropriation of a sum of Rs.1875.13 Ps. and was kept under suspension vide suspension order dated 15.5.1986 and after paying the said amount, suspension order was revoked and he was reinstated into service vide orders dated 31.12.1986. The petitioner again committed misappropriation of Rs.1,092.06 Ps. and, therefore, he was suspended by order dated 29.8.1988 and after paying the said amount, he was again reinstated into service by order dated 24.1.1989. It is stated that again he was suspended for unauthorized absence and non- settlement of accounts while he was working at Palwancha vide proceedings dated 19.9.1989 and was reinstated vide order dated 10.2.1990. It is further stated that he has also misappropriated an amount of Rs.17,016/- while he was working at Palwancha and was placed under suspension vide proceedings dated 27.6.1993 and after payment of the said amount, he was again reinstated into service vide order dated 19.8.1995. Finally, he has misappropriated an amount of Rs.28,974.30 Ps., which in fact is Rs.30,119.60 Ps. This amount was admittedly paid by the petitioner along with interest and costs, as is evident from the order dated 19.5.1998 in ARC No. 145/96-97 passed by the Cooperative Sub-Registrar/Arbitrator, Girijan Cooperative Corporation Limited, Visakhapatnam. Thus it is stated that the petitioner does not deserve consideration for awarding a lesser punishment than the dismissal, which was rightly awarded by the respondents. Learned counsel for the petitioner submits that the punishment imposed on the petitioner is highly disproportionate, excessive and arbitrary compared to the gravity of the charges, which shocks the conscience of the court, as he being a downtrodden poor person, the department has been exonerating him of such small misappropriations and, therefore, the dismissal from service of the petitioner is not because of the past conduct but because of the temporary misappropriation of the amount. It is further submitted that the past conduct cannot be taken into account as the past conduct about the misappropriation is not the base for the charges before the Enquiry Officer, for taking disciplinary action. It is further stated that the petitioner did not participate in the enquiry and, however, having realized the mistakes, he has paid up the entire amount, which is said to have been temporarily misappropriated and, therefore, a lenient view is required to be taken. Having regard to the facts and circumstances of the case, as the petitioner was appointed as Salesman and he did not earn any promotion and since for the past several times, the departmental authorities have condoned the lapses on the part of the petitioner in respect of the temporary misappropriations and have reinstated him into service, I am of the considered opinion that imposition of punishment of dismissal from service is harsh and disproportionate to the gravity of the charges, which shocks the conscience of the court. Having regard to the totality of the circumstances, I am of the opinion that imposition of punishment of withholding three increments with cumulative effect will meet the ends of justice. Accordingly, the impugned order is modified directing the petitioner to be reinstated into service with continuity of service but, however, without back wages and with the stoppage of three periodical increments with cumulative effect. The writ petition is accordingly disposed of. No order as to costs. ___________________ Justice V.Eswaraiah December 2, 2010 MAS