IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.231 of 2007 ==================================================== NARAYAN YADAV, SON OF SRI UTTIM LAL YADAV, RESIDENT OF VILLAGE- PIPARAHI, P.O. CHICHODHWAR, THARDHI, P.S. LAUKAHI, DISTRICT- MADHUBANI :---PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY, ANIMAL HUSBANDRY DEPARTMENT, BIHAR, PATNA. 2. THE DIRECTOR, ANIMAL HUSBANDRY DEPARTMENT, BIHAR, PATNA. 3. THE JOINT DIRECTOR, ANIMAL HUSBANDRY DEPARTMENT, BIHAR, PATNA. 4. THE GENERAL MANAGER, CENTRAL POULTRY FARM, PATNA :-- RESPONDENTS. ==================================================== Appearance : For the Petitioner : MR. SURAJ NARAIN YADAV, ADVOCATE. For the Respondents: MR.RITESH KUMAR, A.C. TO A.A.G.-3. ==================================================== 02. 11.07.2011. Heard learned counsel for the petitioner and the State. 2. Petitioner at the relevant time served as Store-Keeper, Central Poultry Farm, Patna. He is aggrieved by Order No. 102 bearing Memo No. 617 dated 2nd December, 2006 passed by the Director, Animal Husbandry, Bihar, Patna, Annexure-17, whereunder he has been dismissed from service after conclusion of the departmental proceeding pursuant to charge-sheet enclosed along with Order No. 60 dated 22nd December, 2001, Annexure-1. Perusal of the charge-sheet would indicate that petitioner is alleged to have defalcated a sum of Rs. 2,17,947.65 paise during the period between 8.7.2000-31.12.2000 when he served as salesman 2 at the sales counter of the Central Poultry Farm. Having received the charge-sheet petitioner submitted his written defence refuting the charge as according to the petitioner sale proceeds of the period between 08.07.2000-31.12.2000 was deposited with the Cashier by the petitioner but according to the petitioner Cashier did not deposit the said amount in the current account of the Poultry Farm. It is also stated that in token of the receipt of the sale proceed by the Cashier, Cashier had put his signature against the amount in the private diary of the petitioner. Later when discovery was made that the sale proceeds of the period between 01.08.2000-31.12.2000 has not been deposited in the current account of the Farm First Information Report alleging defalcation was registered against the Cashier, General Manager, the Cashier deposited the amount in the current account of the Poultry Farm. Aforesaid written defence of the petitioner was examined by the Enquiry officer in the light of the Bank statement of the period during which petitioner is alleged to have defalcated the aforesaid amount. Having seen the statement of account and other documents the Enquiry Officer under report dated 21.11.2005 held 3 that the defalcated amount of Rs. 2,40063.65 paise was not deposited in the current account no. 39053 of the Poultry Farm by the petitioner. In the light of the aforesaid report of the Enquiry Officer petitioner was served with the second show-cause notice under Memo No. 574 dated 23rd November, 2005, Annexure-15 asking him to show cause as to why he be not visited with major punishment. In response to the aforesaid show-cause notice petitioner filed his second show-cause reply which is dated 14.12.2005 copy whereof has been annexed as Annexure-16 to this writ petition. Perusal of the second show-cause reply also indicate that thereunder petitioner again reiterated his stand taken before the Enquiry Officer that the sale proceeds of the period during which he is alleged to have committed defalcation was deposited with the cashier and the cashier put his signature in the private diary of the petitioner in token of the receipt but failed to deposit the amount in the current account of the Poultry Farm until the First Information Report was lodged in the matter against the cashier and the General Manager, cashier thereafter deposited the amount in the Current Account No. 39053 of the Poultry Farm and as the 4 said stand taken by the petitioner in the written defence was found correct by the Enquiry Officer he recorded a finding in the Enquiry Report dated 21.11.2005 that the defalcated amount was not deposited by the petitioner in the current account of the Poultry Farm. The disciplinary authority although considered the second show-cause reply dated 14.12.2005 but passed the impugned punishment order holding the petitioner guilty without appreciating the fact that Enquiry Officer himself had recorded the finding that the aforesaid defalcated amount stood deposited in the current account of the Poultry Farm. The sale proceeds for the period between 08.07.2000-31.12.2000 may not have been deposited in the current account of the Poultry Farm within a reasonable time but for such non-deposit of the amount within a reasonable time and for temporary defalcation of the amount the cashier who having received the amount from the petitioner, in my opinion, appears to be responsible. In paragraph 26 of the writ petition petitioner has categorically stated that the defalcated amount was lying in Current Account No. 39053 with the State Bank of India, Veterinary College Branch, Patna and such statement made in the writ petition has 5 not been disputed by the authorities though they have filed detailed counter affidavit in the matter. 3. For failure to consider the aforesaid aspect of the matter that the defalcated amount stood deposited by the cashier soon after lodging of the First Information Report against the cashier and the General Manager, I set aside the dismissal order No. 102 bearing Memo No. 617 dated 2nd December, 2006, Annexure-17 and remit back the matter to the disciplinary authority to find out whether the defalcated amount was deposited in the current account of the Poultry Farm bearing no. 39053 with the State Bank of India, Veterinary College Branch, Patna soon after the lodging of the First Information Report against the cashier and the General Manager and if the amount is found deposited in the aforesaid current account of the Poultry Farm then to identify the person(s) responsible for indulging in temporary defalcation of the amount. 4. The writ petition is, accordingly, disposed of. P.K.P. (V.N.Sinha,J.)