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2006 DIGILAW 846 (ORI)

Rabi Kiran Bhaisal v. Chief General Manager

2006-12-14

B.P.DAS, I.MAHANTY

body2006
JUDGMENT I. MAHANTY, J. : The petitioner Sri Rabi Kiran Bhaisal while working as Senior Technical Official Assistant (T) in the Office of Telecom District Manager, Bhawanipatna in the district of Kalahandi sought to challenge the order of suspension dated 15.12.2004 passed against him vide Annexure-3 to the writ appli¬cation. 2. The order of suspension was passed against the petitioner contemplating a Departmental Proceeding on the allega¬tion that the petitioner had misappropriated renewal fees of internet connection and plan 399 deposits etc. The said order of suspension is challenged on the ground that the order of suspen¬sion was issued without any preliminary enquiry. The further ground of challenge is that the letter dated 2.12.2004 issued by the Chief Accounts Officer-opposite party No.3 (Annexure-1) is illegal and without jurisdiction inasmuch as the letter under Annexure-3 has been issued by the Telecom District Manager-opposite party No.2, who is not the appointment/disci¬plinary authority of the petitioner and, therefore, he is incom¬petent to call for a show cause from the petitioner. The peti¬tioner further averts that the entire proceeding against the petitioner is false and has been initiated against him without there being anything on record to indicate that the work of collection of fees had been entrusted to the petitioner that he was given the charge of such collection. 3. Sri H. S. Mishra, learned advocate appearing for the petitioner placed reliance upon a judgment of the Hon’ble Supreme Court of India in the case of State of Orissa v. Bimal Kumar Mohanty AIR 1994 SC 2296 in order to contend that the appointing authority or the disciplinary authority is required to consider both the gravity of misconduct alleged and the nature of the evidence placed while deciding the question whether it is neces¬sary to keep any employee under suspension pending disciplinary action and the petitioner has been suspended without the appro¬priate authority applying his mind to the relevant aspects as noted hereinabove. 4. Sri P. R. Barik, learned counsel for the opposite parties placed reliance upon the contentions advanced by the opposite parties in their counter affidavit and in particular, drew attention of the Court to Annexure-A which is the memorandum of joint surprise check held in the office of Telecom District Manager, Bhawanipatna, Dist. Kalahandi for the period from 11.1.2005 to 13.1.2005. Sri P. R. Barik, learned counsel for the opposite parties placed reliance upon the contentions advanced by the opposite parties in their counter affidavit and in particular, drew attention of the Court to Annexure-A which is the memorandum of joint surprise check held in the office of Telecom District Manager, Bhawanipatna, Dist. Kalahandi for the period from 11.1.2005 to 13.1.2005. With reference to the said memorandum, he submits that misappropriation of a sum of Rs.10,52,391/- was detected and in course of such surprise check, the inspecting team ascertained that since functioning of the Bhawanipatna Telecom District at Bhawanipatna with effect from 26.8.1998 till the date of suspension of Sri Bhaisal, he was posted as Sr. Telecom Office Assistant (T) in December, 2004 and was entrusted the job of collecting the revenue in D.T.O. counter. It is further noted in the said memorandum, which is annexed to the counter affidavit that the payments in respect of new connection, internet connection and the collection against regular telephone bills were made at the counter at which Shri Bhaisal was in charge. The learned counsel for the opposite parties also drew our attention to Annexure-B which is the F.I.R. lodged against Sri Bhaisal pursuant to the surprise inspection carried out under Annexure-A. He further submits that pursuant to the said F.I.R., Khurda C.B.I., Bhubaneswar P.S. case No.RCBHU2005A0001 dated 25.1.2005 has been registered against the present petitioner under Section 420, 467, 468 and 471 of the Indian Penal Code along with Sections 13(2) read with 13(1) (c) and (d) of the Prevention of Corruption Act, 1988 for cheating, forgery, using forged document as genuine and criminal misconduct of misappro¬priation. Learned counsel drew our attention to Annexure-D which is a circular letter dated 26th October, 1993 addressed to all the heads of Circles/Districts by the Department of Telecom intimating that it has been decided to accept collections of telephone bills through CTOs/DTOs and Telecom centres as well as further circular was issued by the Office of the C.G.M.T., Orissa Circle, Bhubaneswar dated 27.10.1993 vide Annexure-E. Apart from this, learned counsel also placed reliance upon the letter of the DTO-In-Charge, Telegraph Office, Bhawanipatna dated 23.7.2005 (Annexure-F) addressed to the Telecom District Manager, Bhawani¬patna furnishing the details of the period during which the petitioner had been performing counter duty for the telephone revenue collection. 5. 5. In view of the facts narrated hereinabove,we are of the view that adequate prima facie evidence is on record for the purpose of determining the periods during which the petitioner was given the responsibility of collection at the telecom coun¬ters and the contentions of the petitioner to the converse is without any merit. 6. Here also, we are further of the view that ratio of the judgment of Supreme Court in the case of Bimal Kumar Mohanty (supra) and the principles enunciated in the said judgment have been adequately fulfilled in the present case. We are of the view that in the present case, the appointing authority who issued the order of suspension vide Annexure-3 sought to suspend the peti¬tioner-employee, pending enquiry or contemplated enquiry or pending investigation into grave charges of misconduct or defal¬cation of funds which prima facie appears to be extremely serious acts of omission and commission in discharge of public duty. We are further of the view that the appointing authority has passed the impugned order of suspension vide Annexure-3 by taking into consideration both the gravity of the misconduct sought to be inquired into as well as the nature of the evidence produced by way of the memorandum of inspection vide Annexure-A, and, there¬fore, we are of the view that this is not the case where we can hold that the order of suspension has been issued in a routine or automatic manner. Suspension is not a punishment but is only one way of forbidding or disabling an employee to discharge the duties of office or the post held by him. We are of the view that power has been justifiably exercised by the authorities in the present case, and suspension of the petitioner was required in order to refrain him from availing any further opportunity in perpetrating the alleged misconduct as well as removing the impression among the members of service that dereliction of duty would pay fruits and the offending employee could be kept away even pending inquiry without any impediment. 7. Taking into consideration the aforesaid facts and law, we are of the view that the writ application merits no consideration and deserves to be dismissed, and we order accord¬ingly. 7. Taking into consideration the aforesaid facts and law, we are of the view that the writ application merits no consideration and deserves to be dismissed, and we order accord¬ingly. But, we make it clear that during pendency of disciplinary proceeding against the petitioner, the petitioner shall be enti¬tled to subsistence allowance as may be payable to him in accor¬dance with law. Accordingly, the writ application stands dismissed with the aforesaid observations, but in the circumstances without cost. B. P. DAS, J. I agree. Application dismissed.