IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No.: 6373 of 2008 Date of decision: 24.11.2010 Tirath Ram … Petitioner. Versus State of H.P and others …Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. Tarlok Chauhan, Advocate. For the respondents: Mr. Rajesh Mandhotra, Dy. A.G. Deepak Gupta, J. 1. By means of this petition, the petitioner who was working as a driver-constable in the Police Department has challenged the order whereby the penalty of three years forfeiture of service has been imposed upon him. 2. The allegation against the petitioner was that he had made wrong entries in the log book and by making such wrong entries in the log book he had shown excess mileage of 8000 kms. in two vehicles attached with the Police Station, Manali and had claimed the fuel expenses for this extra mileage and thereby caused financial loss to the department. 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 Notice was issued to the respondent as to why inquiry should not be held against him for this misconduct. The defence of the petitioner was that he used to drive vehicle as directed by the superior officers i.e the Dy.S.P. and the SHO and that he used to make entries in the log book which were countersigned by the senior officers. In fact, his claim was that Dy.S.P. concerned had taken the vehicle for private visits to Chintpurnee, Jawalamukhee, etc. and shown it as an official duty. According to him, later relations between him and Dy.S.P. soured and therefore, a complaint was lodged against him. An inquiry was conducted and during the course of inquiry charge was proved in respect of 2438 kilometers against the delinquent officer. The charge has been proved against the petitioner basically on the statement of the Dy.S.P. and the SHO. Unfortunately, during the pendency of the present petition the entire record has been destroyed but photo copy of the log book and typed version thereof have been placed before me. 3. I have heard Shri Tarlok Chauhan, learned counsel for the petitioner and Shri Rajesh 3 Mandhotra, Dy. Advocate General for the respondent. 4. The main point raised on behalf of the petitioner is that the petitioner has been made a scapegoat for the misdeeds of the superior officers. It has been strenuously contended by Shri Tarlok Chauhan, learned counsel for the petitioner that entries in the log book were all countersigned by the superior officers and thereafter on the basis of the entries in the log books, bills were prepared and payment made to the person supplying the fuel. He, therefore, submits that after almost one year of the journey being performed the Dy.S.P. could not have complained that the entries were wrong. On the other hand Shri Rajesh Mandhotra, Dy. Advocate General states that this a pure finding of fact recorded by the Inquiry Officer on the basis of the evidence led before him. He further contends that the disciplinary authority has accepted the report of the Inquiry Officer and this Court in exercise of writ jurisdiction should not interfere in the same. 5. I am of the considered view that this Court in exercise of its writ jurisdiction cannot reappraise the evidence. This Court cannot sit as a Court of 4 appeal over the Inquiry Officer. Therefore, the facts which have been accepted on the basis of material on record are taken to be correct. But the question that arises is whether the statements of those persons who themselves are guilty of dereliction of duty, if not of misconduct, can be used to condemn the petitioner. I have gone through the copies of the log book produced before me and I find that there is not a single entry which has not been countersigned by the senior officers. While appearing before the disciplinary authority all that the senior officers state is that they singed the log book believing that the entry made by the driver was correct. Log books are supposed to be entered each and every day and are supposed to be countersigned at the end of the journey. If the journey is only of 40 kilometers how can the superior authority put his counter signature approving 200 kilometers as has been done in some of the cases. One can understand that small variation of 10 to 15 % may be overlooked by the superior officers but can the superior officers say that they did not even look at the log book and blindly signed the same. In case the superior officers have blindly signed the log 5 book, as stated by them, then they were as guilty of misconduct and dereliction of duty and disciplinary proceedings should have been initiated against them also. It is unfortunate that the department did not deem it fit to take action against the Dy.S.P. who even according to his own version blindly signed the log book without verifying the contents thereof only on the assumption that his driver must be telling the truth. Similar is the case of the SHO. Therefore, there is a reasonable doubt in my mind that may be the petitioner is being made a scapegoat for some illegal activities of the senior officers. 6. In such a scenario, it is dangerous to rely upon the statements of the senior officers to convict the petitioner and if their evidence is excluded there is nothing else against the petitioner. 7. Not only did the Dy.S.P and the SHO sing the log book but another important aspect is that after the log book was signed, on the basis of the entries in the log book, at the end of the month a statement used to be prepared about the use of the vehicle and on the basis of this statement amount of fuel expenses used to be paid directly to the persons supplying the fuel. There is nothing on record to 6 show that the petitioner actually got the payment for the fuel allegedly used for this extra mileage. In such a situation, the department should have shown or at least alleged that the petitioner was getting some cut from the supplier of the fuel. There is no such allegation. The SHO and the Dy.S.P were totally oblivious to these facts for almost 6 to 8 months and thereafter also there is no explanation why the report was lodged after six months. 8. In view of the above discussion, it is very difficult to rely only upon the statements of the Dy.S.P. and the SHO who could be in the same boat as the petitioner himself. 9. Normally, I would have remanded this case for holding fresh inquiry including inquiry against the petitioner, the Dy.S.P. and the SHO but since the incident relates back to the year 1996 and the original record has been destroyed this would be an exercise in futility. The report of the Inquiry Officer and the consequent order imposing penalty upon the petitioner are set-aside with all consequential benefits. The respondents are directed to work out the benefits due and payable to the petitioner and pay the same to him on or before 30th April, 2011 7 failing which the department shall be liable to pay interest @ 12% per annum from the date the amount fell due till payment. 10. The writ petition is disposed of in the aforesaid terms. No costs. 24th November, 2010 ( Deepak Gupta ) ™ Judge.