HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting.) (Chapter VIII Rule 32 (2)(b) Description of the case. WP No. 1202(S/S) of 2006 Date of decision 08.09.2006 A.F.R.(Approved for reporting) __________________ Not approved for reporting Date :- 08.09.2006 Initial of Judge Note:- Bench Reader will attach this at the top of the first page of the judgement it is put before the Judge for Signature. HIGH COURT OF UTTARANCHAL, AT NAINITAL Writ Petition No.1202 (S/S) of 2006 Ashok Kumar Singh Presently posted as Salesman/Incharge Fertilizer, Khali Mahuvat Khatima Dakahini Dirghakar Multipurpose Cooperative Society Ltd. Khatima, District U.S. Nagar ………Petitioner Versus 1. State of Uttaranchal through Secretary/Registrar Cooperative Societies Dehradun, Uttaranchal 2. Secretary, Khatima Dirghakar Multipurpose Cooperative Society Ltd. U.S. Nagar. Uttaranchal 3. Committee of Managementm, Khatima Dirghakar Multipurpose Cooperative Society Ltd. through Its Chairman, U.S. Nagar, Uttaranchal 4. S. Maurya, Secretary, Khatima Dirghakar Multipurpose Cooperative Society Ltd. U.S. Nagar, Uttaranchal ……Respondents Dated:-08th September, 2006 Mr. Shobhit Saharia, Advocate for petitioner. Mr. Pervesh Tripathi, Standing Counsel for respondent no. 1. Hon’ble J. C. S. Rawat, J. 1. By means of this writ petition under section 226 of the Constitution of India, the petitioner has sought the following reliefs:- (i) Issue a writ, order or direction in the nature of certiorari quashing the impugned suspension order dated 25.08.2006 (Annexure 8 to the petition). (ii) Issue any other writ, order or direction which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case. 2 (iii) Award the costs of the writ petition. 2. The petitioner’s case in that he was the employee of the Cooperative Society since 1988 as Salesman and he had been working since then. The auditors audited the account of the petitioner and no major irregularities were found in the account. The Secretary, Cooperative Society sought an explanation of the petitioner on 16.06.2006 that during the verification, the stock of Rs.1760/- was found excess. The explanation was replied by the petitioner stating therein that he had not committed any irregularity. The petitioner further stated in the explanation that the respondent no.3 had not correctly verified the stock. He further stated that cheques amounting to Rs.80,241.50 have been sent to the respondent no.3 for signatures and it was the duty of the respondent no.3 to deposit the signed cheques in the bank after making his signatures. It has been further alleged in the petition that the stock was again checked by the respondent no.4 on 08.08.2006 and found shortage of one bag of fertilizer in the stock. It was also further found that 300 bags of fertilizer were received by the petitioner and the cost of the entire bags had been misappropriated by him and in this way a defalcation of monies had been committed by the petitioner. Considering the above fact, the impugned order dated 11.08.2006 suspending the petitioner was passed by the Secretary-respondent no.4. It was further pleaded that the allegations against the petitioner are false and baseless and the impugned order was passed only on the bias approach and with malafide intention of the respondents. It was further pleaded that no preliminary inquiry whatsoever was ordered or done by any officers of the respondents 3 before suspending the petitioner. It was further pleaded that no inquiry officer has been deputed so far. Feeling aggrieved by the suspension order, this petition has been filed. 3. I have heard the learned counsel for the petitioner and learned Standing Counsel for the respondent no.1. 4. Before dealing with the submission of the parties, I would like to discussion the legal position. It is well settled position of law that when an appointing authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts or omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing/disciplinary authority and on application of the mind by the appointing/disciplinary authority. It has been held by the Hon’ble Supreme Court in U.P. Rajya Krishi Utpadan Mandi Parishad and others Vs. Sanjiv Rajan, 1993 Supp (3) SCC p/483, ordinarily when there is an accusation of defalcation of monies the delinquent employees have to be kept away from the establishment till the charges are finally disposed of. Whether the charges are baseless, malicious or vindictive and are framed only to keep the individual concerned out of the employment is a different matter. But even in such a case, no conclusion can be arrived at without examining the entire record in question and hence it is always advisable to allow disciplinary proceeding to continue unhindered. The 4 Hon’ble Apex Court has further held that it is clear that the allegations against the first respondent are grave in as much as they indicate that the amounts mentioned therein are not deposited in the bank and forged entries have been made in the pass-book and the amounts are shown as having been deposited. In the circumstances, the High Court should not have interfered with the order of suspension passed by the authorities. In matters of this kind, it is advisable that the concerned employees are kept out of the mischief’s range. If they are exonerated, they would be entitled to all their benefits from the date of the order of suspension. 5. It is a well-established principle of law that the High Court exercising power of judicial review under Article 226 of the Constitution does not act as an appellate authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by reappreciating the evidence as an appellate authority. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. The court may interfere where authority held the proceedings against the delinquent officer in a manner inconsistent with the principles of natural justice. 6. In the case in hand, the allegations of defalcation of funds and misappropriation of stock are against the petitioner. This Court would not enter into the controversy of the factual aspect. The authority concerned has to assess in his own way to come to the conclusion whether it is fit case for suspension or not. 5 The appointing/disciplinary authority is the appropriate authority to consider the revocation of the suspension order on the subsequent material and developments available on due consideration. Therefore, it would be just and proper to direct the appointing/disciplinary authority to serve the charge sheet and to appoint an Inquiry Officer to consider the charges against the petitioner at the earliest. 7. In view of the foregoing discussion, I am of the considered view that the suspension order passed by the disciplinary authority does not suffer from my infirmity and deserves to be maintained. However, it is made clear that the appointing/disciplinary authority shall appoint an Inquiry Officer within a period of seven days from the date of receipt of copy of this order. The Inquiry Officer shall conclude the inquiry against the petitioner within a period of three months from the date of receipt of copy of this order. The petition is disposed of accordingly. 8. The parties shall bear their own costs. (J.C.S.Rawat, J.) Dated 08.09.2006 LSR 6