SHANKAR SINGH v. STATE OF UTTAR PRADESH — 1999 DIGILAW 278 (ALL)

D. K. SETH, J. ( 1 ) BY an order dated 22. 11. 1995 the confidential report/entry for the year 1994-95 in respect of the petitioners service was withheld on the ground that he was found guilty of both the charges in the enquiry held against him. By another order dated 22. 11. 1995 the petitioner having been found guilty of both the charges in respect whereof, he was subjected to a domestic enquiry he was dismissed from service. These two orders are Annexures 1 and 2 respectively to the writ petition and have since been challenged by means of this writ petition. ( 2 ) SHRI M. L. Rai, learned Counsel for the petitioner had assailed the said orders on the ground that the petitioner has suffered double jeopardy. Inasmuch as by reason of finding of guilt in the domestic enquiry, the petitioner has been awarded punishment of withholding of entry in the service record with regard to integrity and thereafter second punishment of dismissal was awarded to him out of the self same charges. There cannot be two punishments one minor and another major. The petitioner was punished twice for the some charge. He also alleges that the petitioner was not given proper opportunity in the domestic enquiry. Some of the documents which he had asked were not furnished to him. He also contends that even on merits, the finding is perverse. Inasmuch as even though the cheque was signed by the petitioner but in fact the petitioner was not guilty of the charges. On the other hand, it was one Shri Ashok Kumar Mishra who was the real guilty person in whose account the cheque was encashed and against whom the authority lodged an First Information Report and had suspended him but the said Ashok Kumar mishra is still working whereas on the fault of said Shri Ashok Kumar Mishra, the petitioner has been victimised. He also drawn my attention to the various record and has pointed out that the petitioner is not guilty of the charges. He had also relied on the decision in the case of Mohd. Aquil Siddqui v. U. P. State Public Service Tribunal (1), Jawahar Blavan, Lucknow and Ors. He also drawn my attention to the various record and has pointed out that the petitioner is not guilty of the charges. He had also relied on the decision in the case of Mohd. Aquil Siddqui v. U. P. State Public Service Tribunal (1), Jawahar Blavan, Lucknow and Ors. , (1996) 2 UPLBEC 1149 , in support of his contention that even in this case if the petitioner was found guilty of the charges even than the punishment is disproportionate and the petitioner having retired in the meantime he would have been awarded similar punishment as has been awarded in similar circumstances in the case of Mohd. Aquil Siddiqui (supra ). ( 3 ) SHRI K. R. Singh, learned Standing Counsel contends that the petitioner was found guilty of both the charges and he had pointed out that there was sufficient reason supporting such conclusion and there is no infirmity or perversity in the finding. In the absence of perversity in the finding of fact this Court cannot interfere with the same. He further contends that the petitioner had no authority to issue cheque yet he had issued such cheque the said statement has been made in paragraph 11 of the counter affidavit. He further contends that the petitioner cannot deny his responsibility as soon he has signed the papers. Even if First Infonnation Report has been lodged against any person the same can no way affect the proceeding against the petitioner which was altogether on independent proceeding. He also contends that the petitioner has a right to approach U. P. State Administrative Tribunal and therefore there having been adequate alternative remedy, this writ petition is riot maintainable. On these grounds he prays that the writ petition be dismissed. ( 4 ) I have heard learned Counsel for the parties at length. ( 5 ) THE writ petition was filed some time in 1995. Counter and Rejoinder Affidavits have been exchanged and the preliminary objection was raised at the time when the matter was taken up today. Only in reply to the argument made by Mr. Rai, Mr. K. R. Singh had taken this point. In such circumstances, it appears that Mr. Singh was not very serious in pressing the preliminary objection. Had he been so serious in that event he would have taken this point at the very outset before Shri Rai had opened his case. Only in reply to the argument made by Mr. Rai, Mr. K. R. Singh had taken this point. In such circumstances, it appears that Mr. Singh was not very serious in pressing the preliminary objection. Had he been so serious in that event he would have taken this point at the very outset before Shri Rai had opened his case. That apart affidavits have been exchanged and the matter has been heard. Therefore, I do not find any reason that the petitioner should not be thrown on the ground of alternative remedy. Therefore, this point taken by Mr. Singh is overruled. ( 6 ) THE question that the petitioner has suffered double jeopardy appears to be misconceived. Inasmuch as the order dated 22-11-1995 contained in Annexure-2 appears to be a note given on the service record of the petitioner. A perusal of Annexure-2 shows that it was not a punishment inflicted on the petitioner on account of the finding of guilt in the domestic enquiry. Inasmuch as proposal was put up on 30-6-1995 about the entries in the service record of the petitioner with regard to integrity wherein it was mentioned that since the petitioner was under suspension, therefore, his integrity cannot be considered at this stage. Subsequently again by order dated 29-7-1995 and 5-6-1995 the same note has been put up to the extent that enquiry against the petitioner was proceeding, therefore, no entry with regard to integrity can be certified and created in the service record until the enquiry is over. On 22-11-1995 after the enquiry was over, the authority concerned had noted that since charges against the petitioner have been proved in the enquiry, therefore, the entry with regard to the integrity in the service record is withheld. Thus the whole document shows that it was only with regard to the entry in the service record with regard to integrity which could not be certified since he was found guilty in the domestic enquiry. Therefore, it is not a punishment but only an endorsement in the service record with regard to the integrity which could not be certified. The same is in effect a consequential order without inflicting any punishment. The entry in the service record can be made only upon notice. In the present case the petitioner had notice about the finding of guilt in the domestic enquiry. The same is in effect a consequential order without inflicting any punishment. The entry in the service record can be made only upon notice. In the present case the petitioner had notice about the finding of guilt in the domestic enquiry. But this becomes academic as soon the petitioner is dismissed from service on the charges levelled against him. If the petitioner is dismissed from the service it is immaterial as to whether entry in service record could be entered or not. Then again this entry relates to the period 1994-95 viz. , till 31-3-1995 as is apparent from Annexure-2 itself. Therefore, the said entry, even if adverse, relates to a period before awarding of punishment pursuant to domestic enquiry. Therefore, entry having not been related to the year 1995-96 which includes 22-11-1995, the same cannot be treated to be a punishment on the basis of finding of domestic enquiry. In such circumstances, I am unable to agree with the contention of Mr. Rai. ( 7 ) SO far as the order dismissing the petitioner from service is concerned Mr. Rai had taken me through the said order it appears that the petitioner has submitted his reply after charge sheet was received by him and that he had participated in the enquiry in which he was given opportunity of personal hearing. The enquiry officer had found the petitioner guilty of both the charges on the ground that it was under his signature the payment was sought to be made twice to the same person and while the payment was claimed by one Ram Bali Singh, the payment was made to one Shri Ashok Kumar Mishra, an employee of office in which the petitioner was employed. Admittedly the amount was encashed in the account of Ashok Kumar Mishra. Initially it was found that the amount was only directed to be deposited in an account with No. nill whereas subsequently in his signature Account Number was also forwarded in respect whereof the amount to be encashed. After having gone through the finding it appears that all the material on record were taken into account and the authority had come to a finding of fact. It does not appear that there was perversity or infirmity in the said finding of fact. Learned Counsel for the petitioner has also not been able to draw my attention to any such perversity. It does not appear that there was perversity or infirmity in the said finding of fact. Learned Counsel for the petitioner has also not been able to draw my attention to any such perversity. Thus the decision being concluded by finding of fact, this Court sitting in writ jurisdiction is very slow to interfere. I have not been able to pursued myself to interfere with the said order. In the facts and circumstances as indicated above. ( 8 ) THOUGH it was contended that opportunity was not given or that the documents asked for were not supplied but Shri Rai has not pointed out as to how opportunity was refused to him or as to what document was not furnished to him despite having been asked for. In such circumstances, I am unable to agree with the contention as raised by Mr. Rai on this question. ( 9 ) THE other question that the petitioner was not guilty and said Shri Ashok Kumar Mishra was guilty and Shri Ashok Kumar Mishra having allowed to continue, the petitioner cannot be dismissed does not appeal to me for the simple reason that the petitioner was found guilty on account of the charges levelled against him. Whether any other person is guilty or not is neither here or there. In order to find out validity of the order it is necessary to find out the proceeding against the petitioner himself. Even if some one else is guilty and is not punished that will not wipe out the guilt of the delinquent and no one can claim parity in respect of any proceeding against any person both persons might have been proceeded against out of the one transaction has been held by the Full Bench of this Court in the case of Chandresh Paswan v. State of U. P. and Ors. , in Habeas Corpus Writ Petition No. 10215 of 1998, decided on 26-2-1999. ( 10 ) THE fact that FIR has been lodged on 28. 7. 1994 against said Shri Ashok Kumar Mishra has no bearing so far as the finding of guilt of the petitioner. Proceeding against Ashok Kumar mishra is independent and different. He may be punished or subject to punishment or in pursuance thereto. It is open to the Administration to take necessary action as it may deem fit and proper. 7. 1994 against said Shri Ashok Kumar Mishra has no bearing so far as the finding of guilt of the petitioner. Proceeding against Ashok Kumar mishra is independent and different. He may be punished or subject to punishment or in pursuance thereto. It is open to the Administration to take necessary action as it may deem fit and proper. The petitioner cannot claim violation of Article 14 of the Constitution in such circumstances. ( 11 ) THAT the petitioner was not guilty since he had only signed the papers and said Ashok Kumar got the cheque encashed does not appear to be a sound proposition. Mr. Rai had admitted that the petitioner had authority to sign and that he had signed. It appears that payment was sought to be recommended by the petitioner even for two different sums. If the petitioner is unable to decipher this mistake it was his responsibility as he claims to be the Chief Accountant. He cannot absolve himself of his responsibility. ( 12 ) ON these grounds, it is not possible to interfere with the impugned order and as such 1 do not find any reason to do so. ( 13 ) THE decision in the case of Mohd. Aquil Siddiqui (supra), relates to the proportion of punishment. In the said case it was found that the order of termination was disproportionate to the alleged act or omission on which the charge was based and therefore since the petitioner therein had retired he was allowed to retire compulsorily without any financial benefit except continuation of service for the purpose of calculation of retirement benefit. In the present case as we have seen that charges were very grave and the punishment of dismissal as awarded does not seem to be disproportionate and therefore the ratio decided in the case of Mohd. Aquil Siddqui (supra), cannot be attracted in the present case though there might be some identity of facts with regard to the retirement during the pendency of the writ petition. This identity of fact cannot help the petitioner in claiming application of the said case in view of the distinguishing fact and feature of the present case. ( 14 ) THE writ petition, therefore, fails and is accordingly dismissed. However, there will be no order as to cost. .