Civil Writ Petition No.795 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.795 of 2007 Date of decision:- 18.07.2011 Achhar Singh Toor ...Petitioner Versus State of Punjab and another ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. R.K. Arora, Advocate for the petitioner. Mr. Sandeep Moudgil, DAG Punjab. RITU BAHRI J. Challenge in this writ petition is to the order dated 16.10.2001 (Annexure P-7) whereby petitioner has been inflicted punishment of stoppage of three increments without cumulative effect, and orders dated 16.5.2003 (Annexure P-11) and dated 13.7.2006 (Annexure P-12) whereby the appeal and revision filed by the petitioner have been dismissed. Petitioner was appointed as Clerk on 15.4.1965. He was selected and appointed as Tehsildar on 7.3.1989. On 27.7.2001 a show cause notice was served upon the petitioner under Rule 10 of the Punjab Civil Service (Punishment & Appeal) Rules, 1970 on the charge that while working as Tehsildar, Dasuya he had not supervised the work with regard to payment of salary to Chowkidars. It was found that the salary of 293 Chowkidars was being drawn from Tehsil Dasuya whereas the total number of Chowkidars were 269. The salary of those Chowkidars, who had died, was also being drawn. The petitioner was found negligent towards his duties, which cause financial loss to the Government. After Civil Writ Petition No.795 of 2007 -2- receiving show-cause notice petitioner on 12.9.2001 requested the respondents to allow him to see the record so that he can file proper reply to the show-cause notice. Petitioner was advised vide letter dated 19.9.2001 to contact the Tehsildar Dasuya or the Police Department in this regard (Annexure P-6). Vide order dated 16.10.2001 (Annexure P-7) order imposing penalty of stoppage of three annual increments without cumulative effect was passed. Subsequently, the appeal and revision filed by the petitioner were also rejected vide orders (Annexure P-11) and (Annexure P-12). Mr. R.K. Arora, Advocate counsel for the petitioner has referred to the charges as per the charge-sheet dated 12.11.2001 while petitioner was working as Tehsildar alongwith Arvinder Singh, Clerk while preparing the Rasad Bandi it was found that salary of 293 Chowkidars was drawn in the office of Tehsil Dasuya whereas total number of Chowkidars in the Rasad Bandi were 269. Salary of those Chowkidars, who had died, was also being drawn. The payments have been drawn by Arvinder Singh, Clerk but due to gross negligence of the petitioner, financial loss has been caused to the Government. Despite many requests made by the petitioner he could not inspect the official record. Since the official record could not be inspected by the petitioner he could not defend himself in the inquiry. He has referred to the letter dated 11.1.1999 (Annexure P-5) whereby Shri Mohan Lal informed the Deputy Commissioner that Arvinder Singh, Clerk had not submitted the charge/record of the seat. Some of the record was in possession of the police, which has not been returned in the office of Tehsildar. The punishment order is liable to be set aside on this ground. Mr. Sandeep Moudgil, DAG Punjab has argued that an FIR No.25 of 1999 under Section 13(2)88 of Prevention of Corruption Act and under Sections 465/466/120-B/201/468 and 471 IPC was registered at Police Station Hoshiarpur against the petitioner and others for embezzlement of Government money by Civil Writ Petition No.795 of 2007 -3- drawing excess pay of Chowkidars. Senior Superintendent of Police, Hoshiarpur sought prosecution sanction against the petitioner and others. The Department by taking a lenient view has refused to grant sanction for prosecution against the petitioner. The departmental proceedings were initiated against all the delinquent officers and show cause notices were issued. All the officers had filed reply except the petitioner. The petitioner was given number of opportunities to come into the office and inspect the record. Reference has been made to Annexure P-3 dated 3.9.2001 whereby the petitioner alongwith Harjinder Singh and Mohan Lal were directed to submit their reply to the Government. The Deputy Commissioner had asked the petitioner to give the details of the record he wanted to seek vide letter dated 19.1.2001. Vehemently argued that petitioner had inspected the record in the office of Tehsildar, Dasuya and obtained a copy of letter dated 11.1.1999 written by Mohan Lal, Tehsildar Dasuya to respondent No.2, which has been placed on record as Annexure P-5. From the glance of letter dated 11.1.1999 it is very clear that Arvinder Singh, Clerk had not given any amount with regard to disbursement of the salary of Chowkidars till 11.1.1999. Arvinder Singh, Clerk did not offer the account statement for disbursement to the salary for the period August-September 1999. Shri Arvinder Singh, Clerk vide cheque No.563134 dated 20.5.1998 withdrawn Rs.18,000/- and by cheque No.563137 dated 20.7.1998 withdrawn Rs.17,900/- which were earlier deposited in the bank account in Dasuya Branch of State Bank of Patiala. The embezzlement has been admitted by the said employee before all the staff members as per this letter. Shri Arvinder singh, Clerk had deposited the illegal amount of salary in the salary account of Chowkidars without the sale of office and of any officer and thereafter he had withdrawn the same amount. In this background when the record was not being made available presumption was that Arvinder Singh, Clerk is guilty of embezzlement. Since the record was not Civil Writ Petition No.795 of 2007 -4- available, in the show cause notice dated 27.7.2001 (Annexure P-1) it was specifically mentioned that non perusal of the record will not be treated as valid reason for non-submission of the reply from the letter (Annexure P-5). It was clear that the petitioner, who was Tehsildar at the given time was very much aware that Shri Arvinder singh, Clerk (under suspension) had not given the entire record back to the office. The punishment order dated 16.10.2001 does not suffer from infirmity. He has been held negligent in not tracing the conspiracy from April 1995 to 22.5.1997 when the alleged payment of salary was misappropriated. Stoppage of three increments without cumulative effect does not call for any interference of this Court. In view of the law laid down by the Supreme Court in B.C. Chaturvedi versus Union of India and others (1995) 6 Supreme Court Cases 749. In the present case after issuing show- cause notice ample opportunity was given to the petitioner to file his reply. In view of the fact that Arvinder Singh, Clerk had not deposited the entire record with the Department and some record was with the police as the FIR had been registered, gives no ground to the petitioner to discharge his responsibility of looking after the work, which was releasing of salary of 293 Chowkidars whereas total number of Chowkidars were 269. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to Civil Writ Petition No.795 of 2007 -5- reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or whether the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mold the relief so as to make it appropriate to the facts of each case.” In the given facts of the case the petitioner was given enough opportunities to file reply to show cause notice. In fact Shri Arvinder Singh, Clerk who was under suspension did not deposit the entire record with the office. The petitioner cannot take the benefit of this aspect factually the salary had been disbursed to 293 Chowkidars whereas strength of the Chowkidars was 269. Salary had also been disbursed to the Chowkidars who had since died. There is no infirmity in the procedure conducted in the inquiry and the punishment so awarded regarding negligence is so not disproportionate which calls for interference by this Court. The writ petition is dismissed. July 18, 2011 ( RITU BAHRI ) Vijay Asija JUDGE