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2001 DIGILAW 340 (AP)

B. Kishtu v. High Court of A. P.

2001-03-29

S.ANANDA REDDY, S.R.NAYAK

body2001
S. R. NAYAK, J. ( 1 ) THE petitioner while serving as Deputy nazir in the Munsif Magistrate Court, boath, by the impugned proceedings of the high Court in Roc. No. 500/90-B. Spl (SC), dated 31-1-1994 was ordered to retire compulsorily as a measure of disciplinary action. Hence, this writ petition, assailing the validity and legality of the same. ( 2 ) THE background relevant facts to be stated briefly are as under: the disciplinary authority, namely, the learned District and Sessions Judge, adilabad, 2nd respondent herein initiated departmental enquiry against the petitioner and four others, framing as many as 16 charges. Though, initially the charges were issued against the petitioner and four others, it appears that the enquiry against sri V. Shankarachary, Munsif Magistrate, boath was separated from common enquiry and the enquiry was conducted against the remaining four delinquents. Among 16 charges, the petitioner herein was charged with only Charges No. 7 and 8, which read as follows: charge No. 7: That the then District and Sessions Judge, Adilabad during his surprise visit of M. M. Court, Boath on 8-10-1990 found missing of kgs. 0-200 gms. of Ganja in CPR no. 37/89 in Cr. No. 2/89 out of kgs. 1-200 gms. , Kgs. 68-550 gms. less out of Kgs. 137. 150 gms. In CPR no. 10/90 in Cr. No. 17/89 and the entire case property of Ganja of kgs. 40-00 in CPR No. 43/89 in cr. No. 14/89 totally weighing kgs. 108. 750 Gms as per the property register No. 15 of the said Court and you delinquent No. 2 to 5 stealthily sold away the said missing ganja to some Maharashtra people for wrongful gain. Charge No. 8: that on opening of cash iron chest on 19-10-1990 no cash was found in it and you delinquent No. 2 failed to produce Rs. 600. 00 being the permanent advance and cash. ( 3 ) THE Enquiry Officer after holding a departmental enquiry against the petitioner and three others, who included two attenders in the Office of the Munsif magistrate, Boath recorded, the finding that charge No. 7 was not proved against the petitioner and three others. Similarly the enquiry officer held that Charge No. 8 was not proved against the petitioner. ( 3 ) THE Enquiry Officer after holding a departmental enquiry against the petitioner and three others, who included two attenders in the Office of the Munsif magistrate, Boath recorded, the finding that charge No. 7 was not proved against the petitioner and three others. Similarly the enquiry officer held that Charge No. 8 was not proved against the petitioner. However, when the enquiry report landed before the high Court, on administrative side, this court disagreeing with the findings recorded by the enquiry officer reappreciated the evidence on record and came to the conclusion that Charges 7 and 8 are proved by legal evidence. In that view of the matter, by common proceedings dated 31-1-1994 the High Court imposed the penalty of compulsory retirement on the petitioner and three others. ( 4 ) IT appears that the two Attenders, namely Mr. Madhukar and mr. . Bhoomanna, filed W. P. No. 10910 of 1994 and W. P. No. 10919 of 1994 in this court assailing the validity of the proceedings of the High Court dated 31-1-1994. At the time of hearing sri G. Chandraiah, learned Counsel for the petitioner placed before us a copy of the judgment delivered by this Court dated 29-2-2000 in the above said writ petitions. As could be seen from the said order, the penalty imposed on the aforementioned two Attenders was set aside by this Court, after recording a finding that there was absolutely no legal evidence to bring home the charges against the petitioners therein. After perusal of the above judgment, we find that nowhere in the judgment, the court has recorded any finding as to whether the petitioner herein is also innocent of the charge or not and the finding recorded against him by the High court is one without legal evidence. Be that as it may, we do not think it necessary to dilate this aspect further, because the petitioner should stand or sink in this litigation solely on the basis of the merits of the matter in this case and he cannot be permitted to make use of the mere fact of the Court quashing the imposition of penalty on the two Attenders, who are admittedly not the custodians of the subject goods, namely, ganja. ( 5 ) ASSAILING the impugned order as regards the petitioner, Sri G. Chandraiah, learned Counsel for the petitioner firstly would contend that having due regard to the judgment delivered in W. P. Nos. 10910 and 10919 of 1994 and the finding recorded therein and also the proceedings of the high Court dated 06-01-1998 in which the 3rd respondent was found guilty of not handing over the charge to the petitioner after the petitioner reported for duty on 13-07-1990, this petitioner is also entitled for the same relief. Secondly, the learned counsel would contend that even the finding recorded by the High Court on charges No. 7 and 8 against the petitioner cannot be sustained because the same is not based on legally permissible substantive evidence. ( 6 ) ON the other hand, Smt. Bhaskara lakshmi, the learned Standing Counsel for the Respondents 1 and 2 would support the impugned action. ( 7 ) WE do not find any merit in either of the two contentions urged by the learned counsel for the petitioner. Should it be noticed, as stated above that the petitioner should win or lose this litigation solely on the basis of the strength of the evidence that is led by the respondent-disciplinary authority in the domestic enquiry conducted against the petitioner and three others. It is legally impermissible to record a finding on the basis of the proceedings of the High Court on 6-1-1998, which is not a subject matter of judicial review at all. Similarly, the judgment of the Division bench of this Court in W. P. Nos. 10910 and 10919 of 1994 would no way advance the case of the petitioner because in that case the petitioners are admittedly Attenders and they were not the custodians of the subject ganja. Be that as it may, in the enquiry conducted against the petitioner on charge No. 7, the 3rd respondent herein, namely T. Subash Singh, Deputy Nazir, was examined as PW 16 and he in his deposition categorically stated that he handed over the charge to the petitioner herein between 13-07-1990 and 16-07-1990. P. W. 16 was not cross-examined at all by the petitioner for the reasons best known to him. Therefore, the testimony given by the 3rd respondent remains uncontested. P. W. 16 was not cross-examined at all by the petitioner for the reasons best known to him. Therefore, the testimony given by the 3rd respondent remains uncontested. Beside these weighty circumstances, the High Court has also pointed out that if the version of the petitioner that he resumed charge on 13-7-1990 and the third respondent did not hand-over the charge to him is correct, in normal course, the petitioner without any loss of time would have complained to the learned Munsif Magistrate; whereas the petitioner took roughly one and half month (i. e. , upto 27-8-1990) to bring it to the notice of the learned Munsif Magistrate about no handing over the charge to him by the 3rd respondent. This action, in our considered opinion, is a weighty and relevant circumstance to record a finding against the petitioner. Therefore, it cannot be said that the finding recorded by the High Court on charge No. 7 against the petitioner, is based on no legal evidence. Should it be noticed that the High Court,, while reviewing disciplinary action and finding recorded by the disciplinary authority, cannot go into the question of sufficiency or insufficiency of the evidence. What has to be seen is whether the finding recorded by the disciplinary authority, in the instant case the High Court, is based on some legally permissible evidence. We record the finding that the finding recorded by the High Court on Charge No. 7 is based on legally permissible evidence. ( 8 ) THIS takes us to the finding recorded by the High Court on Charge No. 8. Suffice it to extract the consideration part of the order of the High Court as regards this charge. It reads as follows:"it is not in dispute, that on a report given by the Munsif Magistrate to the district Judge, Adilabad vide Ex. E-52 to the effect that Sri B. Kistoo misappropriated Rs. 600. 00 the matter came to the notice of the District administrative Head of Adilabad district. It is also not in dispute that Sri b. Kistoo obtained loan from Andhra bank on the undertaking given by the employer that the amount due to the bank will be deducted from the salary of the loanee and remitted to the Bank every month regularly till the loan is liquidated. It is also not in dispute that Sri b. Kistoo obtained loan from Andhra bank on the undertaking given by the employer that the amount due to the bank will be deducted from the salary of the loanee and remitted to the Bank every month regularly till the loan is liquidated. In the month of October, sri B. Kistoo who was holding charge of Head Clerk of the Court of Munsif magistrate, Boath produced a voucher before the Munsif Magistrate on 5-10-90 as if he is paying Rs. 600. 00 along with the said voucher for the signature of the Officer. The Officer then endorsed on the voucher to produce the amount which endorsement was duly taken note of by the delinquent by writing on it as sir noted . The amount is to be sent to the Manager, Andhra Bank, Adilabad towards the instalment of October 1990 through the concerned Munsif magistrate. Having taken note of the said endorsement of the M. M. , the delinquent staff member did not produce the amount, and appropriated the same for his personal use. The charged officer - Sri B. Kistoo pleaded in his written statement in this behalf that due to ill-health of his children the instalment of Rs. 600. 00 could not be paid in the month of oct. 90 and that since the payment of rs. 600/- being a private matter, it is nothing to do with the Government transaction. The plea of the Charged Officer to the effect that it is private matter and has nothing to do with the Government transaction is wholly untenable. One of the factors that induced the Bank to advance loan to the Charged Officer is the undertaking given by the employer that the monthly instalments due by the employee will be deducted from his salary every month and remitted to the Bank regularly till the loan is liquidated. When such is the liability of the employer towards the bank to say that it is a private matter and nothing to do with the government transaction, to say the least, is misconception. His further plea that due to ill-health of his children the instalment of Rs. 600. 00 could not be paid cannot absolve him of the charge of misappropriation. His further plea that due to ill-health of his children the instalment of Rs. 600. 00 could not be paid cannot absolve him of the charge of misappropriation. He cannot meet the medical expenses of the ill-health of his children with the government amount which intended to be sent to the Bank towards his monthly instalment. In as much as the charged Officer confessed that he appropriated this amount to meet the medical expenses of his children, this part of charge that he misappropriated the said amount of Rs. 600. 00 was amply established. As regards the 2nd part of the charge that he misappropriated the cash balance of Rs. 46. 00 from the iron chest of the Court the contention of the delinquent employee is that he purchased two green ink bottles, carbon papers and pin sheets all worth of Rs. 46. 00 on 15-10-1990 and he was to make the necessary entries on 16-10-1990 the day on which he was placed under suspension and thereafter did not go to Boath to make the entries. When the delinquent employee purchased the above stationery items on 15-10-1990 immediately he should have make necessary entries in the concerned registers and produce the bills/ vouchers before the officer intimating him about the purchases he made. He did not do so. He should not forget that he is dealing with Govt. money and make necessary entries, as and when any purchases are made, immediately in the concerned registers". ( 9 ) HERE again the finding recorded by the High Court cannot be said to be perverse, warranting our interference. Charge No. 8 framed against the petitioner is proved satisfactorily by circumstantial as well as material evidence. Hence, no interference is called for. ( 10 ) IN the result and for the foregoing reasons, the writ petition is dismissed, however, with no order as to costs.