CIVIL WRIT JURISDICTION CASE No.5580 OF 1990 In the matter of an application under Articles 226 and 227 of the Constitution of India. ----- RAM BADAN SHARMA, SON OF LATE SHRI LEELA DHARI SHARMA, R/O VILLAGE HAJIPUR, POLICE STATION KAKO, DISTRICT JEHANABAD. ….. PETITIONER Versus 1. THE BIHAR STATE ROAD TRANSPORT CORPORATION, THROUGH THE CHAIRMAN, BIHAR STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAWAN,BIRCHAND PATEL MARGE, PATNA-1 2. THE CHAIRMAN-CUM-MANAGING DIRECTOR, BIHAR STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAWAN, BIRCHAND PATEL MARG, PATNA-1. 3. THE ADDITIONAL MANAGING DIRECTOR, BIHAR STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAWAN,BIRCHAND PATEL MARG,PATNA-1 4. THE DIVISIONAL MANAGER, BIHAR STATE ROAD TRANSPORT CORPORATION, GAYA. 5. THE DEPOT SUPERINTENDENT, BIHAR STATE ROAD TRANSPORT CORPORATION, GAYA. 6. THE SPECIAL OFFICER(DEPARTMENTAL ACTION), HEAD OFFICE, BIHAR STATE ROAD TRANSPORT CORPORATION, BIRCHAND PATEL MARGE, PATNA-1. …… RESPONDENTS ----- For the Petitioner :Mr. Pushkar Narain Shahi, :Mr.Pankaj Kumar Singh & :Mr. Sanjeet Kumar Singh For the Respondents :Mr. K.P..VERMA & :Mr. Nand Kr. Singh ----- P R E S E N T THE HON'BLE MR. JUSTICE S.K.KATRIAR & THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL ------ S. K. Katriar & K. K. Mandal,JJ. The petitioner challenges the order of dismissal dated 20.8.1990 (Annexure-10), passed by the Additional Managing Director of the Respondent-Bihar State Road Transport Corporation (hereinafter to be referred to as the - 2 - „Corporation‟), whereby he has been dismissed from the services of the Corporation. 2. A brief statement of facts essential for the disposal of the writ petition may be indicated. At the relevant point of time, the petitioner was functioning as a Cashier in the Corporation‟s Gaya depot. A charge-sheet was served on him wherein two allegations were levelled against him. He had not handed over charge of a sum of Rs.12,618.24 paisa to his successor which he had retained himself from 2.1.1987 to 26.9.1988, i.e., for a period of about 21 months. The second charge was to the effect that he had collected a sum of Rs. 22,680.65 paisa, out of which he deposited a sum of Rs.20,680.65 paisa, and retained the balance sum of Rs. 2000/- with himself for about four months. The petitioner appeared before the Enquiry Officer, submitted his show cause, participated in the enquiry proceeding, cross-examined all the witnesses of the Corporation, and had also produced his witnesses in support of his defence. On consideration of the entire materials, the learned Enquiry Officer found that both the charges had been proved. It has further been found that he deposited both the sums after it was detected by the Audit. It was placed before the Additional Managing Director who considered the same and passed the impugned order of dismissal from service. 3. This matter was earlier laid before a Division - 3 - Bench of this Court on 24.03.1992, on which date the Corporation raised the preliminary objection that the petitioner is a concerned workman in Reference Case No.5 of 1989, which is pending before the Industrial Tribunal, Patna. Therefore, the Tribunal‟s permission was essential before he could be dismissed from services in terms of section 33(2) (b) of the Industrial Disputes Act. It was, therefore, submitted on behalf of the Corporation that, in view of the pendency of proceedings before the Tribunal, the present writ petition is not maintainable. By order dated 24.03.1992, this Court requested the Tribunal to dispose of the Corporation‟s objection which shall be considered by this Court in due course. It appears to us that the matter was considered by the Tribunal and it has held by order dated 20.5.1993, that the petitioner is not the concerned workman in so far as Reference Case No.5 of 1989 is concerned. The Tribunal, therefore, observed that permission was not needed before he could be dismissed from service. Not having been challenged by anybody, the order has attained finality. 4. While assailing the validity of the impugned order, learned counsel for the petitioner submits that the Managing Director is the petitioner‟s appointing authority and he alone is competent to dispense with the services of the petitioner. The impugned order having been passed by the Additional Managing Director, it is bad in law. He also submits that the punishment of extreme penalty of dismissal from services is disproportionate to - 4 - the gravity of the proven charges. 5. Learned counsel for the Corporation has opposed the writ petition. 6. We have perused the materials on record and considered the submissions of learned counsel for the parties. It appears to us that the learned Enquiry Officer has found that both the charges have been proved. It has been held that the petitioner was guilty of embezzlement of a sum of Rs.12,618.24/- for a period of 22 months, and a sum of Rs.2000/- for about four months, and were deposited by the petitioner after the same was detected in course of audit. The same has been upheld by the learned disciplinary authority. This is an issue of fact. This Court in exercise of writ jurisdiction, does not act as an appellate authority, and has the limited jurisdiction of judicial review. No material has been brought to our notice to discredit the findings of facts recorded by the learned Enquiry Officer. We entirely agree with the findings that the petitioner had embezzled the two amounts in question. 7. We must consider the petitioner‟s contention that the Additional Managing Director of the Corporation not being the petitioner‟s appointing authority should not have passed the impugned order of dismissed from service. He has brought to our notice that the delegation of powers corrected upto October, 1976. We have carefully scrutinized the document which does not indicate that the Chairman or the Managing Director is the - 5 - appointing authority for the cashier. It also appears to be an outdated document, having been superseded by the Office Order No.2243, dated 14.10.1988 (Annexure-A), issued under the signature of the Chairman and the Managing Director, which reads as follows: “2. The following orders will come into force with immediate effect:- (a) As contained in Office Order No.954 dated 28th May,1988, now the Addl. Managing Director will be the Chairman of the Establishment Committee for the purposes elaborated in para 3 of the said order. (b) Addl. Managing Director will exercise the powers of the Managing Director in connection with institution and disposal of Departmental Proceedings, review of Departmental Proceeding/ suspension cases. To that extent Office Order No.501 dated 23.3.1988 and Office Order No. 635 dated 14.4.1988 will stand modified.” It is thus evident that on the date of the impugned order, the Additional Managing Director was the competent authority to pass orders in departmental proceedings against the employees of the Corporation. Furthermore, law is well-settled that a District and Sessions Judge includes an Additional District and Sessions Judge, and a District Magistrate includes an Additional District Magistrate, unless displaced by clear terms of the Statute. We are, therefore, of the view that the Corporation‟s Additional Managing Director was the competent authority to pass the final order in the departmental proceedings against the petitioner. - 6 - 8. We must also consider the contention advanced on behalf of the petitioner that the punishment meted out to the petitioner is disproportionate to the gravity of the proven charges. The Corporation has been able to establish convincingly during the course of enquiry proceedings that the petitioner was guilty of embezzlement of the Corporation‟s funds. It is further manifest that he had the intention to retain it permanently which is manifest from the factual position that he deposited both the amounts after it was detected during the course of audit. The employee is the trustee of the employer, and an inanimate object like the Corporation functions on the strength of its employees. Any Corporation would find it difficult to function and remain in continued existence if its employees engage themselves in acts of misconduct like the present one. Embezzlement means that its funds are being eroded. Law is well-settled that the quantum of punishment is essentially an executive and managerial function left to the discretion of the employer. This Court, in exercise of the power of judicial review, is always reluctant to interfere with the quantum of punishment unless it is seriously disproportionate to the gravity of the proven charges or shocks the conscience of the Court. In the facts and circumstances of the case, we are of the opinion that in view of the proven charges, appropriate punishment has been inflicted on the petitioner. We must in this connection note that it is on account of such employee that the Corporation is - 7 - threatened with extinction. The Supreme court intervened in the matter and directed the Government of Bihar to give a massive subsidy for the survival of the Corporation. We are informed at the Bar that, in spite of such massive financial assistance, the Corporation has not been able to stand on its feet and has not so far become self-reliant. It continues to reel under financial crisis. 9. In the result, we do not find any merit in this writ petition which is accordingly dismissed. In the facts and circumstances of the case, however, there shall be no order as to costs. ( S. K. Katriar ) ( Kishore K. Mandal ) Patna High Court, Dated 3rd December,2009 HR/NAFR