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2005 DIGILAW 660 (ORI)

Dwijabar Bhuyan v. Konark Television Ltd.

2005-11-18

A.K.SAMANTARAY, B.P.DAS

body2005
JUDGMENT A. K. SAMANTARAY, J. — In this writ petition under Article 226 of the Constitution of India the petitioner has challenged his order of termination from services, passed on 15th March, 1996 by the Disciplinary Authority (Annexure-6), and has come with prayer to quash the same on the ground that the charge levelled against him is totally baseless and without any material on record, the Enquiry Officer found him guilty of the same and the Disciplinary Authority passed the order vide Annexure-6 concurring with the finding, which is neither logical nor rational. 2. The back ground of facts, in a nutshell, are as follows :- The petitioner joined in Konark Television Limited, a Gov¬ernment of Orissa undertaking in the year 1974 as a Radio Wirer. In the year 1990, he was promoted to the post of Technical Offi¬cer and was posted at Sambalpur. Subsequently, he was transferred to Berhampur Sales & Service Centre and worked as such there from 2.2.1990 to 30.12.1990. He being a Technical Officer, was mainly entrusted with the supervision work over the technicians work in the Service Centre of Konark Television. One Jr. Clerk was posted by the Corporation in the Sales Centre for preparation of bills towards the cost of the spare parts utilized for repair of Tele¬vision sets and the labour charges. The said Clerk, being a ministerial staff, was receiving receipt books from the Corpora¬tion for issuance of money receipts, which were being sent to the Accounts Officer, Konark Television, Bhubaneswar. He also kept the receipt books, in his personal custody in the office almirah under lock and key. As regards collection of money, he was main¬taining daily collection register and was depositing the money towards sale of spare parts and labour charges in the State Bank of India, Main Branch, Berhampur on the following day. It was the said Clerk, who was directly issuing the money receipt and was submitting the statement to the Accounts Officer in the 1st week of every month showing deposits in the preceding month. He was also submitting the counter foils of the money receipt for cross-verification along with statement to the Account Section of the Head Office at Bhubaneswar. He was under direct control of the Accounts Officer and used to receive his pay directly through cheques. He was also submitting the counter foils of the money receipt for cross-verification along with statement to the Account Section of the Head Office at Bhubaneswar. He was under direct control of the Accounts Officer and used to receive his pay directly through cheques. The payment towards his salary was being made by the Accounts Officer through the State Bank of India, Berhampur where the said Clerk was directed to open an account in his name and this petitioner had absolutely no control over him. Even his casual leave was being sanctioned by the Accounts Officer of the Head Office at Bhubaneswar. During the incumbency of the peti¬tioner at Berhampur from 2.2.1990 to 30.12.1990 one Sri Mahesh Prasad Hentalia, was the office Clerk dealing with cash and ac¬count directly under the control of the Accounts Officer of the Corporation at Bhubaneswar and he was collecting money from the customers and issuing money receipts. It is alleged against the petitioner that during the period from 1.4.1990 to 31.12.1990 he had misappropriated Rs.9,050.06 paise, which was not deposited in the Bank against collection of Rs.2, 24,699.46 paise and, as such, he violated the Rule 5(1) of the Conduct , Discipline and Appeal Rule of the Company, 1988. On the said allegation, charge sheet was issued vide Annexure-1 and he was called upon to file his written statement of defence within 7 days. After veri¬fication of the document, the petitioner submitted his show cause to the charge vide Annexure-A wherein he stated that Mr. M.P. Hentalia, Jr. Assistant was independently handling the cash matter of the Berhampur Service Centre and also one R.K. Sahoo, Jr. Clerk was handling the cash matter at the said Sales Depot at Berhampur.He has specifically stated that he was a Technical Officer at Berhampur Sales Centre from 1.4.1990 to 31.12.1990 and he is no way connected with the misappropriation of the Corpora¬tion money, which he had no occasion to handle nor was it his duty and the same was handled only by the Jr. Assistant attached to the Service Centre. Assistant attached to the Service Centre. He has also stated in the show cause that during his tenure at Berhampur Service Centre as well as in the Sales Depot, which was opened for the first time, he kept himself engaged in promotion of sale of T.V. sets and, as such, he was busy with the dealers as well as the outside customers and he was not in touch even with the said office Clerk-Sri Hentalia and also the accounts matter. In his show cause, he has pinpointed Sri M.P. Hentalia, to be responsible for shortage of Rs. 9,050.06 paise. The explanation submitted by the petitioner was not accepted and the Enquiry Officer was appointed who submitted his report, wherein he has mentioned as follows :- “From the enquiry my inference is :- (1) Mr. M.P. Hentalia is responsible for the short deposit since he was handling the Service Accounts. (2) Mr. D. Bhuyan is also responsible for the short deposit as he was the Officer-in-charge of the Depot.” Basing on the enquiry report, the Disciplinary Authority i.e. Managing Director of Konark T.V., Bhubaneswar issued show cause annexing the enquiry report and passed final order of termination of services of the petitioner on 15.3.1996 vide Annexure-6 stating that the order shall take immediate effect on the date of issue and further ordered for recovery of misappro¬priated amount.The petitioner, thereafter, preferred an appeal to the Chairman, but the same was rejected by the Chairman vide communication dated 23rd August, 1996 (Annexure-7). 3. Counter affidavit has been filed by the Deputy Manager (Marketing) of the Konark T.V., Bhubaneswar stating therein that the petitioner was also entrusted with th work of collection, deposits and any kind of expenditures related to Service Centre. The cheques towards expenditure of Service Centre were directly issued in the name of the petitioner, who subsequently submitted the vouchers for adjustment and one such document has been an¬nexed as Annexure-B. As regards the office Clerk, Sri Hentalia it has been stated in the counter affidavit that Sri Hentalia was posted under the disposal of the petitioner and the petitioner had entrusted the work to Sri Hentalia for preparation of bills and collection of money from the customers and the money receipts were issued from the Head Office in the name of Technical Officer and not in the name of the Assistant. Much emphasis has been attached to issuance of cheques from the Head office for incur¬ring expenditure except the cheques related to salary. It is stated in the counter affidavit that the petitioner has admitted the charge and, as such, the prayer of the petitioner for produc¬tion of Sri Hentalia as a witness was felt unnecessary by the Enquiry Officer. As regards the similar charges against the other Technical Officer, it is stated by the deponent at Para-20 that one Sri Kamraj Biswal was a Technician of the Service Centre and as he was in charge of the Service Centre for a short period, in absence of the actual in-charge, and he had no account knowledge, the responsibility was fixed jointly on Sri Biswal and Sri Henta¬lia, dealing Assistant. 4. In the Rejoinder Affidavit to this counter affidavit the petitioner has categorically stated that he was never en¬trusted with the responsibility to make collection and tender deposits. But he was incurring expenditure for maintenance of the establishment from out of the amount received from head office on the personal account and so far the collection from the customers are concerned and the deposits thereof were exclusively under the domain of the Clerk, Sri Hentalia. He has categorically denied the assertion of the opposite parties that he had entrusted the work to Sri Hentalia for preparation of bills and collection of money from the customers. 5. At the time of hearing, none appeared for the opposite parties and we heard the learned counsel for the petitioner at length, who took us to the annexures filed on behalf of the petitioner as well as the opposite parties. With reference to Annexure-B, about which much has been stated in the counter affidavit filed by the opposite parties, he submitted that this Annexure-B has a reference to Para-5 of the Rejoinder affidavit filed by the petitioner, where he has stated that he was directly receiving amounts from the Head Office for the maintenance of the Service Centre and he was submitting vouchers relating to the expenditure incurred on that head and this Annexure is nothing but the details of the bills relating to the expenditure for maintenance of the Service Centre etc. This annexure has nothing to do with the collection of money, which has to be deposited in the Bank in the account of the Corporation, he submitted. This annexure has nothing to do with the collection of money, which has to be deposited in the Bank in the account of the Corporation, he submitted. We find much force in his submission, as this is only an adjustment, towards the amount received, made by the petitioner, which he has very much admitted and we have no hesitation to accept the con¬tention of the learned counsel for the petitioner, as not a single document has been annexed to show that the petitioner was in charge of collection of money, i.e., Sales Proceeds of T.Vs., T.V. parts etc. 6. Learned counsel for the petitioner, with reference to the judgment of the Apex Court reported in 2005 AIR SCW 95, (Damoh Pana Sagar Rural Regional Bank and another V. Munna Lal Jain) vehemently urged that law is well settled that the Court should not interfere with the administrator’s decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. Unless the punishment imposed by the Disciplinary Authority or the appellate authority shocks the conscience of the Court/Tribunal, there is no scope for interference. He argued that in the instant case, from the very inception of issuance of show cause, with the charge sheet, against the petitioner, the petitioner has put-forth the same defence that he was not handling the cash nor was he responsible for maintaining cash accounts or he was to deposit the same in the Bank. Not a single document has been annexed to show the duty to be performed by the petitioner, who was a Technical Officer. Admittedly, a Clerk was attached and there is nothing to show that he was not collecting and handling the cash and he was not receiving the receipt books and account for them to the Accounts Officer in the Head Office. If at all the petitioner was main¬taining the cash register and submitting the accounts statement to the Accounts Officer of the Head Office, it is not understood why not a single document has been annexed in support of such assertion. The assertion of the petitioner that he was not at all concerned with the account and cash of the Sales Centre in our opinion appear to be bona fide and true. The assertion of the petitioner that he was not at all concerned with the account and cash of the Sales Centre in our opinion appear to be bona fide and true. When a person is not at all concerned with the dealing of cash and accounts, absolutely no interference can be drawn against him. As we find from the enquiry report, there is absolutely no proof through any evidence and the Enquiry Officer has drawn inference and held that the Clerk in-charge, who was handling the cash, was responsible. At the same time the Enquiry Officer has held this petitioner re¬sponsible, as because he was in-charge of the Sales and Service Centre. In absence of any scope on the part of the petitioner to handle the cash and account we fail to understand how he can be pinpointed and held guilty of the charge of misappropriation out of the fund. As regards the averments in the counter affidavit of the opposite parties that the petitioner has admitted his guilt, we have carefully scrutinized Annexure-C and could not find anything to show which is the statement of the petitioner record¬ed during the course of enquiry by the Enquiry Officer that the petitioner admitted to have misappropriated the alleged amount. As because he was in-charge of the Sale Centre, he cannot be held responsible for misappropriation committed by another employee of the said Sale Centre. 7. The finding that the petitioner is guilty of the charge of misappropriation is absolutely bereft of any logic and is totally irrational. We fail to comprehend how the Managing Direc¬tor accepted and concurred with the Enquiry report, which is based on no evidence and passed the order of termination of serv¬ices of the petitioner. The Chairman, in appeal, has also turned down the prayer of the petitioner to exonerate him and has re¬jected/dismissed the appeal which has brought him to this Court. We are shocked and surprised the way the petitioner has been entangled in the charge and has been penalized for no fault of his and has been thrown out being stigmatized. Had the Enquiry Officer or the Disciplinary Authority applied the judicial mind and looked into the matter in its right perspective, the peti¬tioner would not have been thrown into such disastrous situation. 8. Had the Enquiry Officer or the Disciplinary Authority applied the judicial mind and looked into the matter in its right perspective, the peti¬tioner would not have been thrown into such disastrous situation. 8. In view of the foregoing discussion, we have no option than to allow the writ petition and in the process we quash Annexure-6 dated 15.3.1996, the order of termination of the petitioner as well as the order of recovery of the so called misappropriated amount passed by the Disciplinary Authority. We direct that the petitioner be reinstated in service with all service benefits from the date of his termination and the pecuni¬ary entitlement of the petitioner be computed and paid to him up-to-date from the said date of actual termination within a period of four months from the date of receipt of this order. The writ petition is allowed accordingly. B. P. DAS, J. I agree. Petition allowed.