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2001 DIGILAW 803 (ALL)

Om Prakash Gupta v. Upper Nibandhak (Prashason) Co-operative Societies

2001-08-09

ASHOK BHUSHAN

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ASHOK BHUSHAN, J. ( 1 ) HEARD Counsel for the petitioner Sri H. N. Tripathi and Sri S. S. Sharma the learned Standing counsel and Sri O. P. Singh. ( 2 ) THIS writ petition has been filed challenging the order dated 16. 12. 1991 passed by the Upper nibandhak (Prashasan) Co-operative Societies, U. P. , Lucknow by which the punishment has been awarded to the petitioner in disciplinary proceedings. Counter and rejoinder affidavits have been exchanged and with the consent of the parties the writ petition is being finally decided. ( 3 ) FACTS of the case as emerge from the pleadings of the parties are that the U. P. Co-operative union, Lucknow, appointed the petitioner on 10. 5. 1958 as Cooperative Supervisor. On 8. 2. 1979 petitioner was appointed as Inspector (Group II ). Petitioner with effect from 1. 3. 1979 has been working on the post of Inspector (Group II ). In 1988 petitioner was posted as Cooperative inspector Group II and Cooperative Marketting Society, Chandausi, Moradabad, A disciplinary enquiry was initiated against the petitioner and he was placed under suspension by the order dated 21. 4. 1990. A charge sheet dated 28. 4. 1990 was issued to the petitioner containing fifteen charges. The Enquiry Officer submitted a report against the petitioner. In the enquiry report charges No. 1, 4, and 12 were found proved against the petitioner and charge No. 6 partly proved. After receiving the enquiry report a show cause notice dated 27. 9. 1991 was issued to the petitioner. In the show cause notice the punishing authority stated that petitioner to show cause with regard to charges No. 1, 2, 8, 12, 13, 3, 6, 9 and 11. Petitioner was exonerated only from the charges No. 5, 7, 1 and 14. Show cause notice also stated that it is proposed to revert the petitioner on the post of Co-operative Supervisor apart from certain other punishment. Petitioner gave reply to the show cause notice. The disciplinary authority passed the order dated 16. 12. 1991 awarding following punishment: (i) Petitioner was reverted on the post of Co-operative Supervisor with immediate effect. (ii) No salary or allowance be paid to the petitioner during the suspension period apart from the suspension allowance already paid. (iii) The period of suspension will not be treated as service period, (iv) A censure entry was awarded in the character roll. 1991 awarding following punishment: (i) Petitioner was reverted on the post of Co-operative Supervisor with immediate effect. (ii) No salary or allowance be paid to the petitioner during the suspension period apart from the suspension allowance already paid. (iii) The period of suspension will not be treated as service period, (iv) A censure entry was awarded in the character roll. ( 4 ) THE petitioner has challenged the aforesaid order by means of this writ petition. The Counsel for the petitioner made following submissions : (a) The order reverting the petitioner on the post of Co-operative Supervisor, was awarded without application of mind and contrary to the materials on record. It was submitted that according to Rule 49 (iv) the loss caused to the Society could have been recovered from the petitioner but the penalty of reversion was not justified. Elaborating the said argument it has further been contended by the Counsel for the petitioner that the punishment awarded to the petitioner is shockingly disproportionate to the magnitude of charges. (b) The third penalty by which the suspension period has been treated as not on duty is not covered by the provisions enumerated under Rule 49 of the Civil Services (Classification, control and Appeal) Rules, 1930. (c) The petitioner was not promoted on the post of Co-operative Inspector Group-II but was directly appointed on the aforesaid post hence the punishing authority was not empowered to revert the petitioner from the post of Co-operative Inspector Grade-II to the post of Co-operative supervisor. ( 5 ) HEARD Counsel for the parties and perused the record. The punishing authority in the impugned order dated 16. 12. 1991 has held charges No. 1, 3, 4, 8. 9, 13 and 15 proved against the petitioner. Charges No. 6 and 11 were held to be partly proved. The charges which have been levelled against the petitioner included the charges pertaining to financial irregularities and that of embezzlement, while considering the charge No. 1 the punishing authority has held that the petitioner has not acted in accordance with the resolution of the Board of Management and has caused loss to the society. It was held that for the loss caused to the Society petitioner is fully responsible and the value of the potatoes be recovered from the petitioner. Charge No. 3 was also held to be partly proved. It was held that for the loss caused to the Society petitioner is fully responsible and the value of the potatoes be recovered from the petitioner. Charge No. 3 was also held to be partly proved. It was stated that the excess expenses have been shown by which the amount has been misappropriated. With regard to charge No. 4 it was held that the petitioner incurred more expenses than the sanctioned amount. The expenditure for more than Rs. 5,000/was required to be approved by the competent authority. Petitioner spend about. Rs. 40,557/ -. Charge No. 6 which was again for expending beyond the expected budget was held to be partly proved. Charge No. 8 pertained to interpolation in the proceeding book. Charge No. 9 was held to be proved in which the allegation was that the petitioner utilised a sum of Rs. 4,000/- in his own use and hence misappropriated the said amount. Charge No. 12 was with regard to interpolation in proceedings book. It was pertaining to the embezzlement of Rs. 4311/ -. The punishing authority considered the explanation of the petitioner given to the show cause notice and found the explanation unsatisfactory. The contention of the petitioner that the charges against the petitioner were of very minor nature is not borne out from the record. Charges were serious including the charges of financial irregularities and misappropriation of the fund. The punishing authority found the aforesaid charges proved after considering the enquiry report and other materials on record. The contention of the Counsel for the petitioner that the charges were not of such nature in which major penalty of reversion can be awarded is not acceptable. This court in writ jurisdiction cannot enter into the appreciation of facts and start examining the correctness and propriety of the findings recorded by the disciplinary authority. Charges No. 3, 4 and 6 were charges of financial irregularities. Charges No. 9 and 13 were of charges of misappropriation and both these charges were also held to be proved. The punishing authority while recording the finding has considered the explanation of the petitioner, the enquiry report and other material on record including the statement of the witnesses. Charges No. 3, 4 and 6 were charges of financial irregularities. Charges No. 9 and 13 were of charges of misappropriation and both these charges were also held to be proved. The punishing authority while recording the finding has considered the explanation of the petitioner, the enquiry report and other material on record including the statement of the witnesses. The punishing authority while considering the charge No. 1 although has directed that the amount of loss caused by the petitioner to the Society should be recovered from the petitioner but while passing the punishment no order was passed for recovering the amount from the petitioner. This omission on the part of the punishing authority can in no way help the petitioner. Charge No. 1 was found to be proved and while awarding punishment the same could have been taken into consideration and the fact that no order for recovery was passed in no way vitiates the punishment order. The contention of the Counsel for the petitioner that punishment is shockingly disproportionate is not acceptable. The Apex Court in the case of Narayan Duttatraya Ramteerathankhar v. State of maharashtra and Ors. (1997) 1 SCC 299 , has held that on finding that the petitioner has committed misappropriation of public money his removal from service was an appropriate order. ( 6 ) THE second submission of the Counsel for the petitioner that penalty No. (ii) i. e. treating the suspension period as period not on duty is not covered by punishment enumerated under Rule 49 though on the first impression appears to be attractive but on close scrutiny the same does not hold any ground. Rule 49 of the Civil Services (Classification, Control and Appeal) Rules, 1930 enumerated the punishment which can be awarded on the Government servants. One of the punishment is suspension. Financial Hand Book, Volume II, Parts II to IV contains the provision regarding suspension. Rule 49 of the Civil Services (Classification, Control and Appeal) Rules, 1930 enumerated the punishment which can be awarded on the Government servants. One of the punishment is suspension. Financial Hand Book, Volume II, Parts II to IV contains the provision regarding suspension. Rule 54-B, Clause (i) is quoted below : "when a Government servant who has been suspended is reinstated or would or would have been so reinstated but for his retirement on superannuation while under suspension, the authority competent to order reinstatement shall consider and make a specific order- (a) regarding pay and allowance to be paid to the Government servant for the period of suspension in that reinstatement order the date of his retirement or superannuation as the case may be; and (b) whether or not the said period shall be treated as period spent on duty. " ( 7 ) WHILE exercising power under Rule 54-B the disciplinary authority was fully competent to direct that the period of suspension be not treated as period spent on duty. Thus there is no error in awarding the aforesaid punishment to the petitioner. ( 8 ) THE third submission of the Counsel for the petitioner that since he was directly appointed on the post of Co-operative Inspector Group-II he could not have been reverted has also no substance. Annexure-1 to the writ petition is the appointment order dated 8. 2. 1979. The order shows that the Co-operative Supervisors including the petitioner were appointed on temporary basis as Inspector Group-II. The order further contemplated that the appointment is temporary and at any time without notice they can be reverted. In view of the specific stipulation of reversion in the appointment order petitioners contention that he cannot be reverted, is not acceptable. From the above discussion I do no find any error in the punishment order. The writ petition lacks merit and is dismissed. . .