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2006 DIGILAW 359 (GAU)

Jayanta Kumar Das v. State of Assam

2006-04-12

I.A.ANSARI

body2006
JUDGMENT Iqbal Ahmed Ansari, J. 1. The petitioner joined, in the year 1982, the Assam State Cooperative Marketing & Consumers Federation Ltd. ('STATFED'), at its Jorhat Branch, as a Scaleman, While the petitioner had been working as in-charge of the Sale Booth of the STATFED, at Jorhat Branch, he was served with a notice, dated 28.8.1996, under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964, adopted under Rule 43 of the Service Staff Regulations of STATFED, 1985, directing him to show cause as to why any of the penalties prescribed in Rule 7 of the Assam Services (Discipline and Appeal) Rules, 1964, ('the said Rules') should not be imposed on him on the charges, which are reproduced here in below: Charge-I While you were working as Scaleman and in-charge of the sale both attached to the Staffed, Jorhat Branch office, during the period from August 94 to April 95, you have less deposited Rs. 15,818.42 (Rupees fifteen thousand eight hundred eighteen and poise forty-two) only in the Bank/office out of total sale proceeds of Rs. 65,924.80 on different dates, as mentioned below. You are therefore charged with Less deposited of sale proceeds amounting to Rs. 15,818.42 (Rupees fifteen thousand eight hundred eighteen and poise forty-two) only. Causing intentional loss to the Federation. Charge-II While you were working as Scaleman in-charge of the Sale Booth attached to the Staffed Jorhat Branch during the period from 8.8.1994 to 31.3.1995 a quantum of 45 nos of Goods were found short in the Sale Booth, the value of stock at Rs. 2,274.75 as per shortage of Goods statement at enclosed as Annexure I. Thus, you have misappropriated the above Goods valued at Rs. 2,274.75 causing loss to the Federation. You are therefore charged with misappropriation Rs. 2,274.75 (Rupees two thousand two hundred seventy-four and paise seventy-five) only and there causing loss to the Federation. Charge-III While you were working as Scaleman in-charge of the Sale Booth attached to the Staffed Jorhat Branch office during the period from 8.8.1994 to 31.3.1995 you had defalcated the following stocks by not in taking and deducting from the Stock book. (1) 0.50 qtls. Rice shown issued at stock book P/5 dated 31.12.1994 but no cash Memo Nor value is deposited @ Rs. 880.00 per qtls. = Rs. 440.00 (2) Arhar Dal received 0.035 qtls. (1) 0.50 qtls. Rice shown issued at stock book P/5 dated 31.12.1994 but no cash Memo Nor value is deposited @ Rs. 880.00 per qtls. = Rs. 440.00 (2) Arhar Dal received 0.035 qtls. Vide delivery challan No. 5180 dated 26.10.1994 but not taken into stock @ Rs. 16 = per kg. = Rs. 56.00 (3) Mug Dal received vide delivery challan No. 7655 dated 22.12.1994 but 0.04 qtls. not taken in to stock @ Rs. 26 per kg. = Rs. 80.00 (4) Atta vide delivery challan No. 3603 dated 14.3.1993 received 0.26 qtls. but not taken in to stock. = Rs. 175.00 Total : Rs. 751.00 (5) Cash memo 161038 dated 3.10.1994 Sold 4 kg. Rs. 74 = (Sale Day Book page No. 26) Deposited Rs. 74 = in full but deducted From Stock Book (p/18) 2.00 kg. Only Adjustment of value of 2.00 kg. is Rs. 37 = (-) 37.00 Rs. 714.50 Thus you have defalcated the stock valued at Rs. 714.50 (Rupees seven hundred fourteen and paise fifty) only for your personal gain and there by causing less to the Federation. You are therefore changed with defalcation of stock valued Rs. 714.50 thereby causing loss to the Federation. Charge-IV While you were working as Scaleman in-charge at the sale Booth attached with the Staffed Jorhat Branch office, during the period from August 1994 to March 1995, you have not shown a sum of Rs. 2,952.15 in the sales statement in the following line (1) sale as per cash Memos = Rs. 68,875.95 (2) Less amount as per sales = Rs. 65,924.80 Rs. 2,952.15 Thus, you have misappropriated the amount of Rs. 2,952.15 (Rupees two thousand nine hundred fifty-two and paise fifteen) only by falsifying the sales statement. You are therefore charged with misappropriation of Rs. 2,952.15 (Rupees two thousand nine hundred fifty-two and paise fifteen) only thereby causing pecuniary loss to the Federation. 2. The petitioner submitted, on 21.11.1998 his reply to the said show cause notice, dated 28.8.1998, his case being, in brief, that he had no intention to commit misappropriation of the fund and had, inadvertently, made some wrong entries in the books of accounts showing less deposit. By this reply, the petitioner, however, requested the STATFED to pardon him and realize the loss sustained by the STATFED from his monthly salary. 3. By this reply, the petitioner, however, requested the STATFED to pardon him and realize the loss sustained by the STATFED from his monthly salary. 3. In course of time, without having been directed by the respondents, the petitioner deposited the alleged defalcated amount of Rs. 21,759.82. Thereafter, an order was issued, on 22.7.2003, by the respondent No. 4, namely, Managing Director, STATFED, Guwahati, dismissing the petitioner from service. The petitioner, then, preferred an appeal to the Chairman of the STATFED on 9.9.2003; but as his appeal did not yield any fruitful result, the petitioner has approached this Court, with the present writ application, made under Article 226 of the Constitution of India, seeking, inter alia, issuance of appropriate writ(s) setting aside and quashing the impugned order, dated 22.7.2003, aforementioned, whereby the petitioner stands dismissed from service. 4. The respondent have resisted the present writ petition by filing their affidavit-in-opposition, wherein they have contended, inter alia, that since the petitioner, in response to the notice to show cause, substantially admitted his guilt, his retention in service was found undesirable for a business organization, such as STATFED, which requires employees of undoubted integrity and honesty to carry on its activities and it was for this reason that the petitioner was dismissed from service. 5. I have heard Mr. B.P. Borah, learned senior advocate, appearing on behalf of the petitioner and Mr. B.J. Ghosh, learned Government Advocate, appearing on behalf of the respondent No. 1. I have also heard Mr. Sriniyasan, learned Counsel, for the respondent Nos. 2, 3 and 4. 6. Though it has been agitated in the writ petition that an inquiry ought to have been held after the petitioner had submitted his reply to the show cause notice served on him, this ground has not been seriously pressed at the time of hearing. 7. At the time of the hearing of the present writ petition, Mr. Borah, learned senior counsel, appearing on behalf of the petitioner, has, drawing the attention of this Court to the contents of Rule 7, submitted to the effect that under Rule 7 of the said Rules, dismissal of the petitioner was not possible, when the recovery of the alleged misappropriated amount had already been made from the petitioner in terms of Rule 7(iii) thereof. 8. 8. While considering the above grievance of the petitioner, what may be noted is that the present one is not a case, wherein an amount had been deposited, but entry had, inadvertently, not been made. The notice of show cause makes it abundantly clear that the charges levelled against the petitioner were to the effect that the petitioner had not deposited, on different dates, the amounts, which he ought to have deposited, though he had realized the said amounts from the sale booth of the STATFED. In other words, since the amount, which ought to have been deposited, but had not been deposited, the notice to show cause was served on the petitioner alleging, inter alia, that the petitioner had misappropriated the amount(s), in question. There was absolutely no denial by the petitioner that in terms of the entries, which he had already made, the amount(s) stood deposited. The respondents are, therefore, correct in contending that the petitioner had substantially admitted the fact that he (i.e., the petitioner) had misappropriated the amount(s), in question. This impression gains strength from the fact that the petitioner begged to be pardoned and voluntarily offered that the amount(s), in question, be recovered from the monthly salary of the petitioner. In course of time, however, the misappropriated amount of Rs. 21,759.82 has been, admittedly, deposited by the petitioner. There is no order by the respondents/authorities concerned directing the petitioner to deposit the said amount. It is, thus, clear that the petitioner, on his own volition, deposited the misappropriated amount(s). 9. In the above backdrop of facts, when I turn to Rule 7, I notice that the relevant provisions of Rule 7 run as follows: 7. Nature of penalties. - The following penalties may be good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely: (i).... (ii).... (iii) recovery from pay of the whole or part of any pecuniary loss caused by negligence or breach of orders to the Government of Assam or the Central Government or any State Government or any local, or other authorities to whom services of a Government servant had been lent; (iv).... (v).... (vi) removal from service which shall not be a disqualification for future employment; (vii) dismissal from service which shall ordinarily be a disqualification for future employment. 10. (v).... (vi) removal from service which shall not be a disqualification for future employment; (vii) dismissal from service which shall ordinarily be a disqualification for future employment. 10. A careful reading of the above provisions of Rule 7 makes it abundantly clear that it is not necessary that only one of the penalties, which Rule 7 enumerates, can be imposed on a delinquent. As a matter of fact while recovering the entire amount, which may be liable to be paid by the employee concerned, the employee can also be dismissed from service. To put it differently, it is permissible, under Rule 7, to recover an amount, which the employee may be liable to pay, because of the loss, which has been caused to the employer, and, at the same time, the employee can also be dismissed from service. 11. In view of the above, the mere fact that the petitioner has deposited the misappropriated amount, there is no reason why his removal from service could not have been ordered. In short, thus, it was permissible for the respondents to dismiss the petitioner from service besides recovering from him the misappropriated amount. 12. In the case at hand, the STATFED is, admittedly, a society, which is entrusted to carry out monitory transactions. An organization, such as, the STATFED, would need persons, whose integrity are beyond doubt. Since the petitioner has, admittedly, misappropriated the amount of Rs. 21,759.82, there was no doubt that further retention of the petitioner in service was wholly undesirable and while, so dismissing the petitioner from service, it was permissible for the STATFED to recover the misappropriated amount(s). The mere fact, therefore, that the petitioner has deposited the misappropriated amount with STATFED cannot be a ground for interference with the penalty of dismissal, which has been imposed on the petitioner. 13. When an employer has multiple choices of penalties, which can be imposed on a delinquent employee, and the employer has imposed the penalties, which are permissible in law to be imposed, the imposition of such penalties cannot be interfered with unless it shocks the conscience of the court. In the case at hand, when the petitioner has misappropriated the money belonging to the employer, the petitioner's dismissal from service cannot be regarded as shocking to the conscience of the court. 14. In the case at hand, when the petitioner has misappropriated the money belonging to the employer, the petitioner's dismissal from service cannot be regarded as shocking to the conscience of the court. 14. Because of what have been pointed out above, I find absolutely no reason to interfere with the penalty of dismissal from service imposed on the petitioner. 15. In the result and for the foregoing reasons, this writ petition fails and the same shall accordingly stand dismissed. 16. No. order as to costs. Petition dismissed.