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1997 DIGILAW 325 (PAT)

Devendra Narain Ojha v. State of Bihar

1997-04-23

S.N.JHA

body1997
Order The petitioner seeks quashing of the order as contained in Annexure-5 by which he has been dismissed from service, and the order as contained in Annexure-7 by which his appeal against the order of dismissal has been dismissed. The relevant facts are as follows: 2. The petitioner, the then Revenue Inspector, in the Irrigation (Water Resources) Department, was proceeded against on the charge of embezzlement. He has alleged to have misappropriated sums of Rs.1822.30 P. and Rs.3876.37 P. which he is said to have collected from the farmers but failed to deposit. He was placed under suspension on 29.12.76. A criminal case was also instituted. Later, on 26.12.86 he was released from suspension. In view of the enquiry report an order was passed to recover the sum of Rs.1500.12 P. from his salary in five instalments. Finally, on 4.10.94 the impugned order of dismissal was passed. 3. Mr. Shyama Prasad Mukherji, learned counsel for the petitioner, contended that no enquiry as contemplated by Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930 was held. He made specific grievance of the denial of opportunity to examine/cross examine witnesses. He also pointed out that copy of the enquiry report was not furnished to him. This alone is sufficient for quashing the dismissal order. He finally contended that the punishment of dismissal is disproportionate to the charge. 4. In the facts and circumstances of the case, I find no substance in any of the contentions. In paragraphs 2 and 3 of his second show cause the petitioner stated that while the sum of Rs.1822.30 P. was deposited by Tax Collector Is a Mohammad and Moghal Jan on 3.11.76, as regards charge no. 2 i.e. charge with respect to sum of Rs.3876.37 P., Tax Collector Ram Pravesh Singh had deposited Rs.328.90 P. on 16.2.77 and the petitioner himself deposited the amount of Rs.2047.35 P. on 23.8.77. He admitted that there was delay in making the deposits. According to him, it was on account of his illness. It may be stated here that the petitioner became absent from duty on account of alleged sudden illness on 30.10.76, after criminal case was instituted against him on 29.10.76. 5. From the counter affidavit it appears that charge no. He admitted that there was delay in making the deposits. According to him, it was on account of his illness. It may be stated here that the petitioner became absent from duty on account of alleged sudden illness on 30.10.76, after criminal case was instituted against him on 29.10.76. 5. From the counter affidavit it appears that charge no. 1 relating to misappropriation of sum of Rs.1822.30 P. was not found proved as this amount had been collected by other Tax Collector which had since been deposited by them, although after some delay. It is with respect to the second charge relating to sum of Rs.3876.37 P. that he has been found guilty. To be precise, the petitioner has been found guilty of temporary embezzlement of sum of Rs.2047.35 P. and permanent embezzlement of Rs.1500.12 P. As stated above, even in his show cause the petitioner had claimed to have deposited sum of Rs.2047.35 P. after good deal of delay. Thus, the petitioner gave account of only part of the amount (Rs.328.90 P. + Rs.2047.35 P. = Rs.2376.25 P.) out of Rs.3876.37 P. No account was submitted with respect to the balance amount of Rs.1500.12 P. In these circumstances, the finding of the Enquiry officer holding the petitioner guilty of temporary embezzlement of sum of Rs.2376.35 P. and permanent embezzlement of Rs.1500.12 P. does not appear to be arbitrary. Since the charge was based on the records and the petitioner failed to give satisfactory explanation, I do not think his grievance as to denial of opportunity to examine, cross-examine witnesses has any substance. 6. Mr. Mukherji placed reliance on State of Bombay vs. Noorul Latif Khan (AIR 1966 Supreme Court, 269) and State of U.P. vs. C.S. Sharma (AIR 1968 Supreme Court, 158) in support of his contention that there should have been oral enquiry and an opportunity to examine/cross-examine witnesses should have been given. 7. In K.L. Tripathi vs. State Bank of Indian (AIR 1984 Supreme Court, 273) the appellant, a Bank Manager, had been dismissed from service on the charge of committing irregularities in the transactions and violation of Bank Rules without any oral enquiry and examination of witnesses. Dealing with the contention that the rules of natural justice had been violated, the Supreme Court observed: "The basic concept is fair play in action-administrative, judicial or quasi judicial. Dealing with the contention that the rules of natural justice had been violated, the Supreme Court observed: "The basic concept is fair play in action-administrative, judicial or quasi judicial. The concept of fair play in action must depend upon the particular lis, if there be any, between the parties. If the credibility of a person is in doubt, or if the version or the statement of the person who has testified, is, in dispute, right of cross-examination must inevitably form part of fair play in action but where there is no lis regarding the facts but certain explanation of the circumstances there is no requirement of cross-examination to be fulfilled to justify fair play in action. When on the question of facts there was no dispute, no real prejudice has been caused to a party aggrieved by an order, by absence of any formal opportunity of cross-examination per se does not invalidate or vitiate the decision arrived at fairly rules of natural justice are flexible and cannot be put on any rigid formula. In order to sustain a complaint of violation of principles of natural justice on account of absence of opportunity of cross-examination, it has to be established that prejudice has been caused to the party concerned by the procedure followed. Neither cross-examination nor the opportunity to lead evidence by the delinquent is an integral part of all quasi judicial adjudications." (emphasis added) It may be stated that in the aforementioned case the allegation of misappropriation was not proved against the appellant nor the bank had been defrauded, but still the order of dismissal was upheld. The decision in the case of C.S. Sharma (supra) and Noorul Latif Khan (supra) was rendered on different facts and circumstances and the same has no application in the present case. 8. As regards the non-supply of the copy of the enquiry report, the Supreme Court has held in Managing Director, ECIL vs. B. Karunakar (AIR 1994 Supreme Court, 1074) that non-supply does not vitiate the penalty in all cases, the delinquent has to show that he suffered prejudice on that count. 8. As regards the non-supply of the copy of the enquiry report, the Supreme Court has held in Managing Director, ECIL vs. B. Karunakar (AIR 1994 Supreme Court, 1074) that non-supply does not vitiate the penalty in all cases, the delinquent has to show that he suffered prejudice on that count. In the present case it appears that the petitioner filed a full-fledged effective petition of appeal dealing with the facts and circumstances of the case, and it does not appear that non-supply of the copy of enquiry report stood in the way of his preferring appeal and thereby caused him any prejudice. 9. As regards the submission that the punishment is disproportionate to the charge, I am afraid, in exercise of writ jurisdiction under Article 226, it is not possible for this Court to interfere with the nature and quantum of punishment. Mr. Mukherji placed reliance on Ranjit Thakur vs. Union of India (AIR 1987 Supreme Court, 2386). That was the case where the appellant, an Army personnel, had been awarded punishment of rigorous imprisonment and also dismissed from service on the charge that he had refused to accept the food that was supplied to him. The Supreme Court, in the facts of the case, interfered with the penalty. In so doing it followed the case of Bhagat Ram vs. State of Himachal Pradesh (AIR 1983 Supreme Court, 454). 10. In the recent case of State Bank of India vs. Samarendra Kishore Endow [ (1994) 2 SCC 537 ] the Supreme Court noticed the case of Bhagat Ram (supra), and other cases on the point and held that the Supreme Court had interfered with the quantum of punishment in exercise of powers under Article 136 read with Article 142 of the Constitution. So far as the jurisdiction of the High Court under Article 226 is concerned, it has no such power. Where the High Court is of the opinion that the punishment awarded to the delinquent is harsh and excessive, it can merely direct the disciplinary authority to reconsider the nature and quantum of the penalty but cannot reduce the same itself. Mr. Where the High Court is of the opinion that the punishment awarded to the delinquent is harsh and excessive, it can merely direct the disciplinary authority to reconsider the nature and quantum of the penalty but cannot reduce the same itself. Mr. Mukherji referred to B.C. Chaturvedi vs. Union of India (AIR 1996 Supreme Court, 484) and Shangrila Food Products Limited vs. L.I.C. of India [ (1996) 5 SCC 54 ] and submitted that the powers of the High Court under Article 226 are akin to those of the Supreme Court under Article 142 of the Constitution for doing complete justice between the parties. In the facts and circumstances of the case, having regard to the nature of the charge which relates to misappropriation of Government money, I am not inclined to exercise the extra ordinary discretionary jurisdiction under Article 226 of the Constitution and direct reconsideration of the nature and quantum of punishment. 11. The impugned orders do not suffer from any infirmity. The writ petition is, accordingly, dismissed.