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2005 DIGILAW 568 (GAU)

A. R. Attal v. State of Arunachal Pradesh

2005-08-09

BIPLAB KUMAR SHARMA

body2005
JUDGMENT B.K. Sharma, J. 1. The Petitioner who has been dismissed from service pursuant to a departmental proceeding and confirmed by the departmental appellate authority, has assailed the legality and validity of the same by filing the instant writ petition. 2. The Petitioner while was serving as Head Constable was taken up for a departmental proceeding by issuing a memorandum of charge sheet on 08.08.95 issued under Rule 14 of the CCS(CCA) Rules, 1965. It was a common departmental proceeding in which apart from the Petitioner his superior and Commanding Officer, Inspector T. Takoh was also taken up for departmental proceeding. The memorandum of charge sheet was common to them. The respective charge levelled against the said Inspector and the Petitioner are quoted below: Article of Charge Framed Against inspr. Taba Takoh and H/C A.R. Attal of 2ndt AAP Bn, Changlang ARTICLE-I INSPR. T. TAKOH That Inspr. T. Takoh of 2nd AAP Bn. while functioning as Company Commander 'D' - Coy 2nd APP Bn. Changlang, failed to discharge his duties properly especially in dealing with money matter and as a result Rs.55,508/- (Rupees fifty thousand five hundred eight) remains to be deposited in the Hqrs. 1st Bn. Which was deducted from the salary of 'D'-Coy personnel as subscription/contribution towards AAP, SS, Welfare fund and death contribution. This act on the part of the Inspr. Taba Takoh of 2nd AAP, Bn. Amounts to gross misconduct and misappropriation of government money with dishonest intentions. Hence Inspr. T. Takoh is liable to be dealt with departmentally under the relevant service rules. H/C A.R. ATTAL That H/C A.R. Attal of 2nd AAP BN. While posted at 'D' Coy Changlang, as per order of Company Commander 'D'-Coy Changlang an amount of Rs.16,083/- was deducted from the pay of Company personnel towards the outstanding dues of Shopkeepers of Nampong but H/C A.R. Attal did not pay the amounts to the Shopkeepers. Thus, H/C A.R. Attal had wrongfully gained an amount of Rs.16,083/-. This act on the part of the H/C. A.R. Attal amounts to gross misconduct with dishonest intentions rendering him liable for departmental action under the relevant service rules. 3. On receipt of the memorandum of charge sheet, the Petitioner submitted his written statement of defence denying the charge levelled against him. This act on the part of the H/C. A.R. Attal amounts to gross misconduct with dishonest intentions rendering him liable for departmental action under the relevant service rules. 3. On receipt of the memorandum of charge sheet, the Petitioner submitted his written statement of defence denying the charge levelled against him. In his written statement of defence the Petitioner stated about the recovery of Rs.15,009.30 as per direction of the competent authority and that the balance amount of Rs.1238.30 could not be recovered owing to the transfer and posting of the incumbents named in the written statement. In the written statement, the Petitioner gave details of the recovery made by him from the police personnel towards payment of dues to the shopkeepers. 4. Being not satisfied with the defence statement, the disciplinary authority proceeded to enquire into the matter by appointing Enquiry Officer (E.O.) etc.. On conclusion of the same, the E.O. submitted his report holding that the charge against the Petitioner was established. Similarly the charge against his superior, Inspector, Shri T. Takoh was also held to be established. 5. On receipt of the copy of the enquiry report, the Petitioner submitted his representation challenging the findings recorded by the E.O. holding him guilty of the charge. According to the Petitioner he has been made a scapegoat of the situation in which it is his superior who in fact, was responsible for the misconduct, if any. Striking to his earlier stand in the written statement of defence, the Petitioner in his representation state about the realisation of the amount in question except the amount of Rs.1276.30. He also stated that he being under the control of his superior, the co-delinquent, was not responsible for the commission and omission of the offence attributed to him. 6. On receipt of the representation submitted by the Petitioner against the enquiry report, a further show cause notice was issued to the Petitioner and his superior Inspector T. Takoh as to why the penalty of dismissal from service should not be inflicted on the Petitioner and the penalty of the forfeiture of three increments with cumulative effect should not be awarded to the co-delinquent Inspector T. Takoh. For both the delinquents the period of suspension was proposed to be treated as not spent on duty. 7. For both the delinquents the period of suspension was proposed to be treated as not spent on duty. 7. On receipt of the aforesaid show cause notice, the Petitioner submitted his representation against the proposed penalty reiterating the stand in his written statement of defence and the representation against the enquiry report. 8. After the reply furnished by the Petitioner to the proposed penalty, he has been dismissed from service by the impugned order dated 13.08.03 while the Inspector, T. Takoh has been awarded the penalty of forfeiture of three increments with cumulative effect. The periods of suspension for both have been treated as not spent on duty. 9. Being aggrieved by the order of penalty, the Petitioner preferred a departmental appeal urging various grounds and the appellate authority by its order dated 20.11.03 rejected the appeal affirming the order of dismissal passed by the disciplinary authority. 10. Mr. P.K. Tiwari, learned Counsel for the Petitioner in tune with the grounds of attack urged in the writ petition against the order of dismissal and its affirmation by the appellate authority, submitted that the Petitioner has been made a victim of the circumstances. Referring to the enquiry report, he submitted that as against the original charge of misappropriation of the amount of Rs.16,083/-, the Petitioner has been held guilty of defalcation of an amount of Rs.55,508/- which in fact, was attributed to his superior Inspector, T. Takoh under whose control and guidance he had worked. He submitted that the Petitioner could not have been held guilty of the charge which was never framed against him. He strongly contended that it being a common departmental proceeding, more or less on the same set of charge against both the delinquents with much more gravity of the alleged offence committed by his superior Inspector, T. Takoh, the discrimination in the matter of awarding punishment is writ large. He submitted that it was Inspector T. Takoh who was responsible in dealing with the cash. However, by way of passing the buck to the Petitioner, the disciplinary authority imposed the extreme penalty of dismissal from service on the Petitioner while the co-delinquent with much more gravity of the offence has been allowed to go scot-free with much lesser punishment. According to him this has led to violation of Article 14 of the Constitution of India and the principles of natural justice. 11. Mr. According to him this has led to violation of Article 14 of the Constitution of India and the principles of natural justice. 11. Mr. B.L. Singh, learned Sr. Govt. Advocate, countering the above argument of Mr. Tiwari, submitted that the writ court will not sit on appeal over the evidences on record like an Appellant authority. He submitted that having regard to the gravity of the offence committed by the Petitioner, the penalty of dismissal from service has been rightly imposed on the Petitioner. He submitted that merely because the superior authority of the Petitioner was also taken up for departmental proceeding along with the Petitioner and has been awarded a lesser punishment, the Petitioner on the basis of the facts and circumstances of the case cannot claim lesser punishment than that of the one awarded to him. 12. I have gone through the materials on record including the departmental proceeding file. I have also given my anxious consideration to the submissions made by the learned Counsel for the parties. The charges against the Petitioner as well as the co-delinquent as they stood at the time of issuance of the memorandum of charge sheet, have been noticed above. While the Petitioner was chargesheeted for wrongful gain of an amount of Rs.16,083/-, the co-delinquent who in fact was the controlling officer of the Petitioner, was chargesheeted for misappropriation of Govt. money with dishonest intention to the tune of Rs.55,508/-. 13. The difference between the two charges levelled against Inspector T. Takoh and the Petitioner stares on the face of it. While Inspector T. Takoh under whom the Petitioner had worked was chargesheeted for misappropriation of an amount of Rs.55.508/- with a dishonest intention leading to gross misconduct, the Petitioner was chargesheeted for wrongful gain of Rs.16,083/- amounting to gross misconduct. Both the delinquents were taken up in a common departmental proceeding and on conclusion of the same, the E.O. held both the delinquents guilty of their respective charges. However, the E.O. returned the findings of guilt against the Petitioner on altogether a different charge which in fact, was attributed to his superior and commanding officer Inspector T. Takoh. Inspector T. Takoh was charge sheeted for misappropriation of an amount of Rs.55,508/- but the said charge has been attributed to the Petitioner by the E.O. while holding the charge against the Petitioner to have been established. 14. Inspector T. Takoh was charge sheeted for misappropriation of an amount of Rs.55,508/- but the said charge has been attributed to the Petitioner by the E.O. while holding the charge against the Petitioner to have been established. 14. In the findings recorded by the E.O., referring to the statement of S.I., H/C Deka, Constable Rs.Roy, and the co-delinquent, Inspector T. Takoh, he held that the cash transaction was looked after by the Petitioner during the period from December, 1990 to August, 1993. Inspite of recording a clear finding that no formal order was issued by the company Commander, the co-delinquent to that effect. The E.O. in his report has held that the Petitioner was responsible for handling cash. The refusal on the part of the Petitioner that he was responsible for handling cash, has been disbelieved by the E.O. without assigning any reason. 15. To quell any doubt, I have gone through the proceeding file. Mr. Deka on whose statement the E.O. has placed reliance in his cross examination stated to the pointed question put on behalf of the Petitioner as to whether there was formal official order issued to the Petitioner to deal with the financial matter of the Company, stated that he did not know and that the same would be known to the Company Commander. As to the supervision of his works by his immediate superior, Shri Deka stated that he used to supervise his works. To another question put to him as to whether he had noticed any financial discrepancies committed by the Petitioner, Shri Deka categorically stated that he never noticed any such irregularity. 16. To hold that the Petitioner used to deal with finance, the E.O. has also referred to the statement of Constable P.S. Roy who in his deposition categorically stated that he did not know anything about misappropriation of any amount and anomaly in disbursement of pay etc. 17. From the aforesaid statements of the two witnesses, it will be seen that both the witnesses categorically absolved the Petitioner from the charge of misappropriation of any amount or mishandling of cash by him. However, contrary to such evidence on record, the E.O. held the Petitioner guilty of misappropriation of Rs.55,508/- without any basis whatsoever. 17. From the aforesaid statements of the two witnesses, it will be seen that both the witnesses categorically absolved the Petitioner from the charge of misappropriation of any amount or mishandling of cash by him. However, contrary to such evidence on record, the E.O. held the Petitioner guilty of misappropriation of Rs.55,508/- without any basis whatsoever. While attributing misappropriation of an amount of Rs.55,508/- to the Petitioner, which was the charge against the co-delinquent, his superior officer and Commander of the Company, Inspector T. Takoh, the E.O. did not discuss anything as to how the Petitioner could be held responsible for a charge not attributed to him. It is the fundamental principle of any departmental proceeding so well recognised in service jurisprudence, which also finds place in the rules pertaining to the departmental proceeding that distinct and definite article of charge will have to be framed against the delinquent giving him all reasonable opportunity to meet the charge. 18. In the instant case, the Petitioner was never charged for misappropriation of the amount of Rs.55,508/-. Rather it was his Commanding Officer, Inspector T. Takoh who was charged for the amount alleging that he dishonestly misappropriated the same. The only charge against the Petitioner was that he made wrongful gain of an amount of Rs.16,083/-. However, the E.O. held altogether a different charge to have been established against the Petitioner. On this score alone, the findings recorded by the E.O. is not at all tenable. 19. There was no bar for the disciplinary authority to proceed against the Petitioner on the charge of misappropriation of the amount of Rs.55,508/- which was the charge against S.I., T. Takoh. However, for that a definite procedure as envisaged under Rule 14 of CCS (CCA) Rules ought to have been followed. The Petitioner has been taken by surprise in holding altogether a different charge to have been established which was never made known to him. In fact and as noticed above, the charge which has been held to be established was against the co-delinquent and his Commander, Inspector, T. Takoh. 20. The Petitioner has been taken by surprise in holding altogether a different charge to have been established which was never made known to him. In fact and as noticed above, the charge which has been held to be established was against the co-delinquent and his Commander, Inspector, T. Takoh. 20. Amidst aforesaid discrepancies so glaring on the face of it, in so far as the Petitioner is concerned, the charge against the co-delinquent T. Takoh was held to be established by the E.O. If that be so, it was S.I. T. Takoh who ought to have been dealt with severely, instead it is the Petitioner on whom the axe fell. It gives an impression that the Petitioner was found an easy scapegoat to cover up the serious lapse on the part of the Company Commander, S.I. T. Takoh. 21. The manner and method in which the enquiry proceeded so as to establish the charge never attributed to the Petitioner leads to the irresistible conclusion that the findings recorded by the E.O. to that extent is perverse and is based contrary to the evidence on record. It was the co-delinquent who was responsible as the Company Commander in handling cash. However, he simply passed the buck to the Petitioner to save his own skin which aspect of the matter the E.O. ought to have noticed. 22. As regards the original charge of wrongful gain of Rs.16,083/-, the E.O. has held the same to have been established on the basis of the alleged undertaking given by the Petitioner on 04.08.94 to pay back the amount. However, the Petitioner throughout the enquiry proceeding insisted that he was not responsible for any amount and that no amount was lying outstanding against him. To such a stand of the Petitioner, the E.O. shifted the onus of proof on the Petitioner and held that he plea of the Petitioner was not believable in absence of production of any document by him. This approach of the E.O. was totally wrong. The disciplinary authority having levelled the charge, the onus of proof was on it to prove the same. However, the E.O. held the charge to have been established shifting the onus to the Petitioner to disprove the same. 23. To quell any doubt in this regard, I have verified the records including the proceeding file. The disciplinary authority having levelled the charge, the onus of proof was on it to prove the same. However, the E.O. held the charge to have been established shifting the onus to the Petitioner to disprove the same. 23. To quell any doubt in this regard, I have verified the records including the proceeding file. As regards the alleged undertaking furnished by the Petitioner to refund the amount of Rs.16,083.30, the Petitioner clearly stated in his deposition that such an undertaking was forcibly obtained from him by one Shri P.S. Rathore, the then Assistant Commandant. Such a stand on the part of the Petitioner has gone unrefuted in absence of any cross examination on such statement. Shri Rathore was also examined as P.W. 2 on behalf of the disciplinary authority but he never stated anything to prove the alleged undertaking given by the Petitioner. In fact, the alleged undertaking of the Petitioner dated 04.08.94 was not exhibited during the enquiry. 24. In view of the above position, the E.O. could not have held the Petitioner guilty of wrongful gain of Rs.16,083.30 shifting the onus of proof on him to disprove the charge. It was unfair on the part of the E.O. to place reliance on the alleged undertaking without referring to the statement made by the Petitioner. The circumstances in which such undertaking was given and the failure on the part of the disciplinary authority to prove the undertaking by exhibiting the same through P.W. 2, P.S. Rathore, who according to the Petitioner was responsible towards procuring the same by applying force, ought to have been considered by the E.O. 25. There is another aspect of the matter. The alleged occurrence took place during the period from December, 1990 to August, 1993. The memorandum of charge sheet was issued on 08.08.95 and thereafter the enquiry proceeding came to an end with the issuance of the order of penalty dated 13.08.03 affirmed by the appellate authority by its order dated 20.11.03. Thus, the penalty was imposed on the Petitioner after long more than 10 years. It is on record, irrespective of the fact that the E.O. attributed guilt to the Petitioner for misappropriation of Rs.55,508/- which was not the original charge, the amount of Rs.16,083.30 for which the Petitioner was charged, was in fact, accounted for in 1994 itself Thus, no financial loss was sustained by the department. 26. It is on record, irrespective of the fact that the E.O. attributed guilt to the Petitioner for misappropriation of Rs.55,508/- which was not the original charge, the amount of Rs.16,083.30 for which the Petitioner was charged, was in fact, accounted for in 1994 itself Thus, no financial loss was sustained by the department. 26. Inspite of the above position, the whole emphasis was to somehow find the Petitioner guilty of the charge even by attributing the charge levelled against his Commanding Officer. It gives an impression that different parameters were applied considering the positions of the two delinquents. Throughout the proceeding, the Petitioner was relegated to a position in which he had to face the proceeding not only facing the cross examination by the E.O., but also by the co-delinquent Inspector, T. Takoh. The records have revealed that the Petitioner was thoroughly examined by the co-delinquent exerting his position as the Commanding Officer of the Petitioner to which the. E.O. did not raise any objection. However, such opportunity was not given to the Petitioner. He could not cross examine the co-delinquent S.I. T. Takoh. Such procedure adopted by the E.O. has also vitiated the proceeding. 27. From the aforesaid revelation from the records, it appears that all out efforts were made to shield the co-delinquent, S.I. T. Takoh considering his position and power as the Company Commander and the controlling officer of the Petitioner. Everything was at his command and he could master his own way in the proceeding to which the E.O. also did not raise any objection. On the face of the allegation made against S.I. T. Takoh, he found an easy escape by attributing the guilt to the Petitioner even while admitting that there was no written order permitting the Petitioner to deal with the cash. Throughout the enquiry proceeding it was the definite case of the Petitioner that he was not responsible for any cash transaction and it was the co-delinquent who was authorised to deal with the cash. In reality also it was the co-delinquent S.I. T. Takoh who was responsible for dealing with the cash which fact has not been disputed by the disciplinary authority. However, the guilt was attributed to the Petitioner finding him an easy scapegoat stating that he was entrusted with the authority to deal with the cash as per verbal order. 28. In reality also it was the co-delinquent S.I. T. Takoh who was responsible for dealing with the cash which fact has not been disputed by the disciplinary authority. However, the guilt was attributed to the Petitioner finding him an easy scapegoat stating that he was entrusted with the authority to deal with the cash as per verbal order. 28. The above defence of the Company Commander, the co-delinquent is hardly acceptance. If he was the person to deal with the cash having been entrusted with the job., it was none of his business to redelegate the same to his subordinate officer. The Petitioner has denied all throughout the proceeding such delegation of power to him. The E.O. himself has admitted in his report that there was no written order to that effect. In such a situation, it will be too dangerous to hold a subordinate delegatee to be guilty of an offence committed by his superior officer. If this kind of approach is adopted, any superior officer faced with charge of financial irregularities can shift the guilt to his subordinate officer taking the plea of verbal authorisation to do so. 29. The charge against the co-delinquent which has been stated to be established is the lack of supervision on his part and on that ground he has been imposed with the penalty of forfeiture of three increments with cumulative effect which is also a major penalty. Even if it is held that the Petitioner was also responsible along with his Commander, the co-delinquent for handling the cash, at best a similar charge of being negligent in dealing with cash in a proper manner can be attributed. It is in this regard, Mr. Tiwari, learned Counsel for the Petitioner strenuously argued that in absence of any charge of having played the main role in the alleged incident, there has been violation of Article 14 of the Constitution of India towards imposition of the severe penalty against the Petitioner, compared to the one imposed against the co-delinquent. 30. The charge against the Commanding officer, the co-delinquent was much more serious than the Petitioner. He being the authority to handle cash, the disciplinary authority could not have imposed the penalty of dismissal from service on the Petitioner applying different yardstick in the matter of imposition of penalty. It is in this context, Mr. 30. The charge against the Commanding officer, the co-delinquent was much more serious than the Petitioner. He being the authority to handle cash, the disciplinary authority could not have imposed the penalty of dismissal from service on the Petitioner applying different yardstick in the matter of imposition of penalty. It is in this context, Mr. Tiwari placed reliance on the decision of this Court as reported in 2001 (2) GLT 227 (Probin Kr. Phukan v. Union of India and Ors.) in which this Court in the similar facts and circumstances held that the punishment imposed on the Petitioner was disproportionate and discriminatory having regard to the penalty imposed to another delinquent under similar circumstances. In that case also as in the instant case, the Petitioner was removed from service on the similar set of facts and circumstances another delinquent was imposed with penalty of reduction in rank. In such circumstances a direction was issued to impose similar punishment on the Petitioner and the order of removal was set aside. 31. Above being the position of fact and law, there is no escape from the conclusion that the penalty of dismissal dated 13.08.03 from service imposed on the Petitioner is liable to be set aside and quashed which I accordingly do. Consequently, the appellate order dated 20.11.03 also stands set aside and quashed. The Petitioner shall now be reinstated in service with the imposition of similar penalty as that of the co-delinquent, S.I. T. Takoh or any other lesser penalty as may be deemed fit and proper by the disciplinary authority. However, having regard to the facts and circumstances involved in the case, there shall be no order as to back wages to the Petitioner, meaning thereby that he will not be entitled to any back wages with effect from the date of dismissal from service vide order dated 20.11.03 till reinstatement in service. 32. There is another aspect of the matter. The Petitioner was placed under suspension pending drawl of departmental proceeding and he remained under suspension during (sic) period of 13.09.94 to 25.04.95 and as per the order of the disciplinary authority the entire period was to be treated as not spent on duty for all intent and purpose. 32. There is another aspect of the matter. The Petitioner was placed under suspension pending drawl of departmental proceeding and he remained under suspension during (sic) period of 13.09.94 to 25.04.95 and as per the order of the disciplinary authority the entire period was to be treated as not spent on duty for all intent and purpose. If such a condition remains and the entire period is treated as not spent on duty for all intent and purpose, same might result in forfeiture of service for a particular period. While it is true that the Petitioner cannot be entitled to full pay and allowances for the period of suspension having regard to the fact that the order of suspension passed against him under the given circumstances was not unjustified, but the disciplinary authority cannot treat the period as not spent on duty for all intent and purpose which necessarily will lead to even forfeiture of subsistence allowance. In such circumstances, it is hereby provided that the Petitioner shall not be entitled to anything other than the subsistence allowance which he had drawn during the period of suspension. However, the said period shall be counted to his service without any disentitlement to any other service benefits except the full pay and allowances other than the subsistence allowance which the Petitioner had already drawn during the period of suspension. 33. The writ petition stands partly allowed. However, having regard to the facts and circumstances involved in the case, there shall be no order as to costs.