IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1566 of 2001 ARJUN PRASAD SINGH 'AZAD' Versus COMMISSIONER-CUM-SECRETARY,WAT ----------- For the Petitioner : Mr. Narendra Kumar Singh For the State : Mr. Ranjan Kumar, J.C. to AAG 9 3. 01.09.2008 Heard learned counsel for the petitioner and the State. The petitioner, who was substantively holding the post of Clerk deputed on the post of Incharge Revenue Inspector, was placed under suspension by an order dated 6.4.1993 on allegations of defalcation and irregularity in the maintenance of records. Under a departmental proceeding he was held guilty of temporary embezzlement of Rs. 6661.50 paise, which was deposited in the treasury late. Punishment of dismissal was then passed against him on 17.5.1995. His appeal against the same has been allowed. The punishment has been modified to attribution of negligence to him and, therefore, he shall not be entitled for salary for the period that he did not work in pursuance of his dismissal which has now been set aside, and that the period of suspension shall be counted for the purpose of pension; that nothing beyond subsistence allowance shall be payable for the period of suspension. He has been directed to be reappointed in the Revenue Circle, Aurangabad and stoppage of one increment with cumulative effect along with censure. Learned counsel for the petitioner from the appellate order itself submits that a sum of Rs. 1719/- was subsequently deposited by the Probationer Officer, Gyandhari Mandal holding the post of Tax Collector. Therefore, the temporary embezzlement was by him and - 2 - not by the petitioner. The balance amount of Rs. 4931.40 was received by Sri Shiv Narain Prasad, the Anchal Adhikari directly from the aforesaid Tax Collector. Therefore, on the face of the allegations no amount was handed over to the petitioner by either of them. It was only thereafter if they had handed over the amount to the petitioner, the liability of the petitioner would have arisen and the question of any alleged temporary embezzlement by the petitioner by non-deposit in time could arise. So long the amount in question was not handed over to the petitioner, he was not answerable much less for any negligence. The counter affidavit on behalf of the Respondents does not improve upon the appellate order. In fact, it admits that the money was defalcated by the Circle Officer and the Tax Collector. The probationer Tax Collector has been dismissed from service. The Anchal Adhikari has been proceeded against departmentally. In the facts and circumstances of the case, this Court is satisfied that the order of punishment in so far as the petitioner is concerned becomes nonest. The question of any negligence against him also does not arise. The term “sympathetic consideration” urged by the respondents to reduce the punishment is only evidence of arbitrariness in the facts and circumstances of the case. The impugned order of modified punishment dated 27.6.1996 is, accordingly, set aside. The petitioner shall be entitled to his full wages for the period in between the dismissal and reinstatement. There shall be continuity in service. He shall be entitled to his full salary for the period of suspension as also the increments - 3 - wrongly withheld. The period of suspension shall also count for the period of service. Let the monetary benefits of the same be made available to the petitioner within a maximum period of 12 weeks from the date of receipt and/or production of a copy of this order. The writ application stands disposed. AKS/ (Navin Sinha, J.)