Research › Search › Judgment

Patna High Court · body

2000 DIGILAW 852 (PAT)

Lakshmi Kant Jha v. State Of Bihar

2000-07-10

SUDHANSU JYOTI MUKHOPADHAYA

body2000
Judgment S.J.Mukhopadhaya, J. 1. The petitioner who was a Nazir in Purnea Collectorate was suspended and proceeded departmentally for the alleged misappropriation of Rs. 30,000/- by adopting fraudulent means. The charge having found to be proved, he was dismissed from service by Collector, Purnea, vide Order No. 1034 dated 11th March, 1983. Against the said order, while he preferred appeal, it was dismissed by the Commissioner, Koshi Division, Saharsa, vide order dated 12th November, 1984,which was confirmed by the Revisional authority (learned Additional Member, Board of Revenue), vide order dated 27th March, 1989, as was passed in Revision Case No. 6/85. 2. The petitioner being aggrieved, has challenged all the aforesaid three orders dated 11th March, 1983; 12th November, 1984; and 27th March, 1989 before this Court in the present writ petition, mainly on the ground that the petitioner was not given a reasonable opportunity in the departmental proceeding and the enquiry report is based on no evidence. 3. The brief facts of the case have been mentioned above, while the other relevant fact shows that the petitioner was placed under suspension.vide Memo dated 8th May, 1978 and proceeded departmentally in which Conducting Officer was appointed on 30th August, 1978. 4. In Charge No.1, it was mainly alleged that the petitioner misappropriated Rs. 30,000/- for himself by adopting fraudulent means. He being Nazir, was entrusted with a Bill No.136/77-78 under Head "389-Famine and House Building Grant" for Rs. 9,655/- only. By forging the bill for Rs. 39,655/- he encashed the amount on 12th January, 1978, but shown Rs. 9,655/- only in Cash Book. The other charge (No.2) related to non-production of Treasury Messenger Book before the Office Superintendent, Revenue, even on demand. 5. With regard to the main allegation of misappropriation of Rs. 30,000/- by fraudulent means, one F.I.R. was lodged against him under sections 467; 468; 409; 120(B), for which Criminal Case No. 2 (5)/78 is pending. 6. The petitioner initially prayed for stayal of the departmental proceeding on the ground of pendency of investigation in the criminal case. Such prayer was rejected by the Collector and he was asked to attend day-to-day enquiry. 6. The petitioner initially prayed for stayal of the departmental proceeding on the ground of pendency of investigation in the criminal case. Such prayer was rejected by the Collector and he was asked to attend day-to-day enquiry. After the day-to-day enquiry, the Enquiry Officer held the petitioner guilty of the charges, vide his report dated 8th September, 1982 against which the petitioner was given a 2nd show cause notice, vide Memo No.442 dated 31st December, 1982 and asked him why he be not dismissed from service. On receipt of reply filed by the petitioner on 14th January, 1983, the Collector dismissed the petitioner on 11th March, 1983, as was affirmed by appellate order and revisional order dated 12th November, 1984 and 27th March, 1989 respectively. 7. In support of the contention that the petitioner was not given reasonable opportunity, one of the plea taken was that the departmental proceeding was her stayed till the investigation of the criminal proceeding. However, such stand cannot be accepted at this stage, the petitioner having not moved against such action and having taken part in the proceeding. 8. According to the petitioner, he was innocent and was made victim of a planned conspiracy between some staff of his office and other concerned staff of a District Treasury and Bank. Taking advantage of the bill, in question, they interpolated and got payment for Rs.39,655/- in place of Rs.9,655/- by deliberately over-looking the advice sent by the Anchal Adhikari and the allotment made by the S.D.O., as also by not following the prescribed procedure for the purpose of payment. 9. The aforesaid stand of the petitioner cannot be accepted in absence of specific evidence. Neither the name of individuals have been mentioned, nor any such person has been impleaded as party against whom suggestion has been made that they conspired between themselves to victimise the petitioner. Whether the other over-looked the advice sent by the Anchal Adhikari or the allotment made by the S.D.O. and whether others failed to follow the prescribed procedure, cannot be a ground to defend the case if the petitioner himself has actually withdrawn a sum of Rs.39,655/- in place of Rs. 9,655/-, but still mentioned the same as Rs.9,655/- in the Cash Book. 9,655/-, but still mentioned the same as Rs.9,655/- in the Cash Book. In the aforesaid background, it is mainly to be seen as to whether evidences including the witnesses were brought on record to bring home the charges against the petitioner and whether the petitioner was given reasonable opportunity to defend him or not. 10. The petitioner has taken a vague plea that he called for a number of records but all documents were not given. The other plea is that many of the witnesses were not allowed to be cross-examined. At the time of hearing, the counsel took plea that the copy of the main document i.e. the bill, which was alleged to have been interpolated by petitioner, was not even produced but a photostat copy of the same which was produced was illegible. However, aforesaid plea cannot be accepted, no such specific stand taken by the petitioner in the 2nd show cause that the copy of the bill supplied to him was illegible. 11. The petitioner has stated that he was not permitted to cross-examine three witnesses examined during the departmental proceeding, but he has not given the names of such persons. On the other hand, from the enquiry report, it will be evident that all the main witnesses, namely, Shri Awadh Narain Choudhary, the Head Clerk and Shri Kamal Prasad Choudhary, the then O.S. Revenue were examined and cross- examined by the petitioner. 12. From the stand taken by the petitioner and the disciplinary authority before the Enquiry Officer, the following fact emerges. The Bill No.136/77-78 under Head "389-Famine & House Building Grant" was for Rs. 9,655/- only. It was entrusted to petitioner to encash the same, he being the Nazir. The bill was signed by the Anchal Adhikari on 11th January, 1978 and was encashed by Nazir on 12th January, 1978 from Bank, after its clearance from the Treasury. The petitioner, who was the Nazir encashed and received a sum of Rs.39,655/- from the Bank but in the Cash Book, the petitioner showed it as Rs.9,655/-. This is evident from the enquiry report, as set out hereunder and is enough ground to bring home the charges against the petitioner: "The evidences of Sri Abadh Narayan Choudhary, the then head clerk of Bhawanipur Anchal was recorded in this connection on 26.3.82. He has told in his evidence that bill No.136/77 was for Rs. This is evident from the enquiry report, as set out hereunder and is enough ground to bring home the charges against the petitioner: "The evidences of Sri Abadh Narayan Choudhary, the then head clerk of Bhawanipur Anchal was recorded in this connection on 26.3.82. He has told in his evidence that bill No.136/77 was for Rs. 9,655/- only under the head 289 famine. This bill has not passed through him. The Anchal Adhikari has signed it on 11.1.78 and it had been encashed by the charged Nazir on 12.1.78 for Rs.39,655/- only. But the charged Nazir had shown it as Rs. 9,655/-only in the cash book. Thus, to the Head Clerk Rs.30,000/- only had been embezzled by the charged Nazir. Sri Kamla Prasad Choudhary, the then O.S. Revenue has also deposed in this case on 15.4.82 He had submitted a detailed reports about this defalcation to the then Addl. Collector, Purnea on 2.5.78. He had told in his deposition that bill No. 186/77-78 was Rs.9,655/- only. The bill was to his mind prepared by Sri Umesh Jha, the bill clerk but it had not been checked and signed by the Head clerk, the O.S. has further told that the contingent register, bill book, show Rs.9,655/- only. but the charged Nazir has encashed Rs.39,655/- only Thus he has defalcated Rs.30,000/- only. The O.S. has confirmed the contents of his report dated 2.5.78 marked as SI. No. 816 82 on the record. The O.S. has also told that the charged Nazir had taken token no.203 from the Bank and encashed Rs.39,655/- only through it. Thus he has misappropriated Rs.30,000/- only which is in form of permanent defalcation. The O.S. has also told that the charged Nazir had encashed Rs.39,655/- only as per T.V.No.8 dated 12.1.78 and this withdrawal was also corporated by the O.S. from the Bank scroll and found that the Nazir had withdrawn Rs.39,655/- only had received the amount himself. 5.Sri Sachindanand Prasad the present Nazir of Bhawanipur Anchal has also deposed in this case. He has told that the Audit report para 2 which is attached with the record and marked as SI.No.58 and 59 has been sent to this office by the Anchal Adhikari Bhawanipur vide his memo No. 1426 dt. 29.8.79. He has proved the contents of this report. This witness has further told that the general cash book had been written on 12.1.78. 29.8.79. He has proved the contents of this report. This witness has further told that the general cash book had been written on 12.1.78. This has been signed by the charged Nazir the head clerk and circle officer. This shows the entries of Rs. 9,655/- only under head 289 Famine. The expenditure report of January 1978 under head 289 famine shows Rs.9,655/- only which has been sent to S.D.O. Sadar by the Anchal Adhikari. This has been signed by the Charged Nazir also. The S.D.O. Sadar had allotted Rs.9,655/- only under his memo No.744 dt. 28.11.77. The issue register of the said office shows that on 11.1.78 an advice slip has been sent to Treasury officer Purnea against Bill No.136/77-78 for Rs.9,655/- only vide his letter no. 37 dt. 11.1.78. Thus this witness has also proved that against allotment of Rs.9,655/- only the charged Nazir withdrawn Rs.39,655/- only and showed Rs.9,655/- only in the cash book etc. and thus misappropriated Rs.30,000/- only. 6. The charged Nazir was given sufficient time to cross the above mentioned witnesses. But he did not ask any thing from them. The charged Nazir has told in his show cause dt. 15.5.79 that he himself had prepared bill No.136/77-78 under head 289 famine for Rs.9,655/- only and had given it to the bill clerk to get it checked by the Head clerk and signed by the Anchal Adhikari. He further tells in his show cause then the head clerk did not sign it which is a doubtful state and affairs. But he accepted that the Anchal Adhikari had sent an advice slip to the Treasury Officer, Purnea for Rs. 9,655/- only. Thus the charged Nazir accepts in show cause that he had withdrawn the said bill for Rs.9,655/- only. 7. I verified the statement of the charged Nazir from the advice list maintained in the Treasury dated 12.1.78 at page No.298283. Monthly SI.No.190A shows that the charged Nazir had produced a bill under head 289 Famine as messenger cum Nazir of C.01 Bhawanipur for Rs.39,655/- only. Further, it appears from the Treasury schedule under head 289 famine of January 1978 at SI. No.8 dated 12.1.78 that the charged Nazir had withdrawn Rs. 29,655/- only vide bill No. 136/77-78 under head 289 famine of Anchal Adhikari Bhawanipur. Its T.V. No.8 dt. 12.1.78 which the charged Nazir himself obtained later on. Further, it appears from the Treasury schedule under head 289 famine of January 1978 at SI. No.8 dated 12.1.78 that the charged Nazir had withdrawn Rs. 29,655/- only vide bill No. 136/77-78 under head 289 famine of Anchal Adhikari Bhawanipur. Its T.V. No.8 dt. 12.1.78 which the charged Nazir himself obtained later on. The State Bank scroll dated 12.1.78 at page 2. No.27 shows that Rs.39,655/- under head 289 famine had been withdrawn by the charged Nazir. 8. The most important aspect of the case is the forged bill No.136/77-78 I looked into it. It has been kept in the Treasury as per District Magistrate Purneas order. Its photo stat copy is only available in the treasury. The bill has been prepared by the charged Nazir. It has not been checked and signed by the H.A. Normally, the bills are prepared by the bill clerk. But in this bill the charged Nazir has shown his letter interest and prepared the bill himself. The bill is for Rs.39,655/- only. The bill has been endorsed to the charged Nazir Sri Laxmikant Jha by C.O. on 11.1.78 The charged Nazir had received Rs.39,655/- only from the Bank on 12.1.78." 13. From the aforesaid quotation, it will be evident that the prosecution brought on record enough evidence to bring home the charges against the petitioner of which the petitioner was given reasonable opportunity. Nothing substantive ground having shown by the petitioner in the 2nd show cause reply, the disciplinary authority accepted the enquiry report and inflicted the punishment of dismissal from service by order dated 11th March, 1983. I find no illegality in the same. 14. In the result, there being no infirmity in the order, the writ petition fails. It is, accordingly, dismissed. 15. However, in the facts and circumstances, there shall be no order, as to costs.