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2007 DIGILAW 1081 (PNJ)

Jai Hind, Ex-clerk v. State Of Punjab

2007-05-09

H.S.BHALLA

body2007
Judgment H.S.Bhalla, J. 1. 18th April, 1984 was declared as a black day for Jai Hind, who was working as a clerk in the office of the Sub Divisional Officer (Civil), Moga (hereinafter referred to as "the appellant") when he was removed from service by his Punishing Authority. In order to revive his bread, he knocked the door of the Civil Court by filing a civil suit for declaration in which he challenged his order of removal as also the orders passed by the departmental appellate authorities. His suit was dismissed by the learned Senior Sub Judge, Faridkot on 31.3.1992. Aggrieved against the judgment and decree passed by the learned trial Court, he preferred an appeal before the lower appellate court, but his appeal was dismissed on 19.4.1993. He had no other option but to knock the door of this Court for securing a decree prayed for by him in the civil suit. 2. Briefly stated the facts of the case are that appellant was appointed as a Clerk in September, 1972. Vide order dated 19.2.1978 he was charge-sheeted by Deputy Commissioner, Faridkot on the allegations that he had allegedly prepared false records while he was posted as Clerk in the said office and thus misappropriated a sum of Rs. 33,363/-which pertains to the government and he withdrew that amount from the Head 230 Non Judicial Stamp papers and converted that amount to his own use. Departmental inquiry was conducted against him. He was removed from service through the impugned orders. He challenged the order of removal from service passed by Deputy Commissioner, Faridkot dated 18.4.1984 as also the order passed by the Commissioner, Ferozepur Division Ferozepur, by virtue of which his appeal was dismissed. He had also preferred a review petition, but the same was also dismissed by the Financial Commissioner, Revenue, Punjab vide order dated 20.7.1988. All these orders were challenged by him by filing a civil suit for declaration to the effect that the orders are illegal, against the principles of natural justice and they be treated as non est and he be treated to be in the service of the State of Punjab with all benefits attached to the post. He has also categorically pleaded that proper procedure has not been followed for awarding major penalty as envisaged by Rule 8 of the Punjab Civil Services (Punishment and Appeal Rules) 1970. He has also categorically pleaded that proper procedure has not been followed for awarding major penalty as envisaged by Rule 8 of the Punjab Civil Services (Punishment and Appeal Rules) 1970. He has also disclosed that he was not supplied with the copies of documents, which were sought to be relied upon. No allegation of misappropriation could be leveled against him. It was not government money which he is alleged to have misappropriated. It was private money, which he is alleged to have misappropriated and therefore no pecuniary loss could be caused to the exchequer of the State and the withdrawal of that money does not amount to misconduct on his part so as to call for any departmental action to be taken against him and that the act does not fall within the definition of misappropriation. 3. The suit was contested by the State of Punjab and through the written statement, it was pointed out that due to fraud committed by the appellant, he was charge sheeted and after conducting inquiry, he was dismissed from service on 18.4.1984. Inquiry has been conducted against the appellant in accordance with law. Witnesses were cross-examined by the delinquent official during inquiry proceedings and after issuing show cause notice, personal hearing was also given and thereafter impugned orders were passed. The orders of the appellate authority and the revenue authority are legal and valid and have been passed in accordance with law. It is further pointed out that he prepared forged documents (refund vouchers) for the refund of stamps in different names, who applied to the Collector, Sub Division, Moga under Chapter 7, Part-B-II of Stamps Manual. The suit was also attacked on the ground that same is barred by time. 4. On the pleadings of the parties, the learned lower Court, after framing necessary issues and appreciating the evidence on record, dismissed the suit on 31.3.1992 and thereafter, appellant preferred an appeal before the District Judge, but the same was also dismissed vide judgment and decree dated 19.4.1993. The dismissal of suit and appeal necessitated the filing of the appeal in hand. 5. I have heard the learned Counsel for the parties and have also gone through the record of the case minutely. 6. Learned Counsel for the appellant has vehemently argued that it is not a case of evidence. Charges levelled against the appellant are not proved before the Inquiry Officer. 5. I have heard the learned Counsel for the parties and have also gone through the record of the case minutely. 6. Learned Counsel for the appellant has vehemently argued that it is not a case of evidence. Charges levelled against the appellant are not proved before the Inquiry Officer. It has been further pointed out that charges of embezzlement are fake and no definite charges were levelled against the appellant and on the basis of weak and defective charge-sheet, no action could be taken by the Punishing Authority. 7. The argument of the learned Counsel for the appellant that it is a case of no evidence and that no loss took place to the exchequer of the State Government and that the inquiry has not been conducted in accordance with the rules does not find favour with me for the reasons to be recorded by me hereinafter. It is crystal clear that the appellant was charge-sheeted and the following charges were leveled against him: (i) That while working as a Clerk in the office of the S.D.O. @ Moga in the year 1978, he withdrew an amount of Rs. 33,363/- from the Govt. Treasury, Moga, during the period 9.3.1978 to 30.8.1978 which amount already stood deposited under Head "230-Non Judicial Stamps" after preparing bogus refund vouchers. (ii) that later on, when his above mentioned nefarious activity came to the notice of the senior officers, he deposited the said amount back in the Treasury. 8. In order to prove these charges, the department conducted regular inquiry under the rules after recording statements of number of witnesses, who were cross-examined at length by the appellant when he appeared before the Enquiry Officer and by no stretch of imagination, it can be said that it is a case of no evidence. Learned Counsel for the appellant has not been able to point out any violation of rules for setting aside the impugned order and I have no hesitation to observe that the Enquiry Officer has taken full pain to conduct inquiry strictly in accordance with law and the documents which have been placed before the Enquiry Officer were duly mentioned in the detailed list attached with the list of allegations. Moreover, strict rules of the Evidence Act are not applicable to the procedure of domestic enquiry. Moreover, strict rules of the Evidence Act are not applicable to the procedure of domestic enquiry. The Court is only to scrutinise and to find out whether any prejudice has been caused to the delinquent official or not. Since the documents which have been produced before the Enquiry Officer were well within the knowledge of the appellant and have been mentioned in the list attached and the charge sheet, therefore, no prejudice has been caused to the delinquent official in any manner. Moreover, it is well settled that in domestic enquiry strict sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logical for a prudent mind are permissible. 9. In the instant case, the alleged misconduct of the appellant was that he, while working as a Clerk in the office of the S.D.O. @ Moga in the year 1978, withdraw an amount of Rs. 33,363/- from the Govt. Treasury, Moga, during the period 9.3.1978 to 30.8.1978, which amount already stood deposited under Head "230-Non Judicial Stamps" after preparing bogus refund vouchers. In view of this fact, it is not possible to hold that the appellant deserves to be retained in the Government service. Ordinarily, the Courts would have sympathy for an employee, who is going to lose his employment and thereby his means of maintenance would disappear but in a case as the present one, wherein an employee is guilty of offence involving embezzlement or act of dishonesty, courts sympathy would be misplaced and may result in injustice done to the employer. No employer can be saddled with responsibility to retain an employee, who is proved to be corrupt or indulging in dishonest practices, especially when an employee is dealing with the public at large. Showing sympathy in a case like this, could possibly be construed as corrupt or even possibly be regarded as indirectly encouraging dishonesty. 10. In a civil suit challenging validity of departmental procedure cannot be treated as appeal from the finding of the departmental proceedings or the punishment inflicted upon the government employee. The question which would effect the result in a civil suit as to be of such a nature that it goes to the root of the jurisdiction and the conduct of departmental trial vitiates the result. The question which would effect the result in a civil suit as to be of such a nature that it goes to the root of the jurisdiction and the conduct of departmental trial vitiates the result. It is only if the departmental process is null and void and the plaintiff in such a suit could obtain relief, he had asked for and in the present case, the appellant has not been able to point out any invalidity in the departmental proceedings which spells out the violation of the rules. 11. Learned Counsel for the appellant has also submitted that there is a violation of Sub-rule (8) of Rule 8, it provides that the government employee can take assistance of any other government employee to present the case on his behalf, but he cannot engage a legal practitioner for the said purpose, unless the Presiding Officer appointed by the punishing authority is a legal practitioner. Sub-rule (II) provides for adjournment of the case before recording statements of the witnesses. 12. I have given due consideration to the above arguments of the counsel for the appellant. No doubt, Rules are framed to be followed, particularly in the case of holding inquiries against the employees. However, breach of every rule or non-observance of the same would not always amount to vitiate the inquiry. If substantially the rules are complied with and no prejudice is caused to the employee, the inquiry cannot be held to be illegal. It is in this context that the Rules applicable to the plaintiff-appellant are to be considered and the inquiry proceedings to be gone into. Rule 8(8) of the Punjab Civil Services (Punishment and Appeal) Rules referred to above does not provide for seeking permission of the punishing authority to have the assistance of another Government employee to represent the delinquent in the enquiry. It was not necessary either for the punishing authority or for the enquiry authority to inform the delinquent, who in the present case is a Clerk that he could have the services of another co-employee. The services of a Clerk cannot be equated to that of employee, who may not be having any knowledge of intricacies of the rules. As already discussed above, the inquiry file shows that sufficient opportunities were given to the appellant for examining the records of the department, but this opportunity was not availed of by the appellant. The services of a Clerk cannot be equated to that of employee, who may not be having any knowledge of intricacies of the rules. As already discussed above, the inquiry file shows that sufficient opportunities were given to the appellant for examining the records of the department, but this opportunity was not availed of by the appellant. A perusal of the inquiry file, Ex. P-12,spells out that when it was proposed to hold an inquiry against the appellant, the punishing authority had drawn up the substance of imputation of misconduct into a definite and distinct articles of charges, statement of imputations of misconduct or misbehaviour in support of each article of charge which contained a statement of relevant facts, a list of the documents by which and list of witnesses by whom the articles of charges were proposed to be sustained and copy of articles of charge, the statement of imputation of misconduct and list of documents, witnesses by which each article of charge was proposed to be sustained was supplied to the plaintiff and he was given a sufficient reasonable time to submit written statement of his defence and to state as to whether he deserves to be heard in person. The appellant filed written statement of defence. In the said written statement, the plaintiff no-where alleged that he has not been supplied copy of any document or he was not allowed to inspect certain documents. Further, a perusal of the enquiry file shows that on receipt of the written statement of the defence of the appellant, the punishing authority appointed an Inquiring Authority for the purpose. The Presiding Officer was also appointed by the Punishing Authority. A further perusal of the enquiry file shows that the punishing authority forwarded a copy of the article of Charge and the statement of the imputation of misconduct or misbehaviour and copy of the written statement of defence of the appellants evidence proving the delivery of documents required to be delivered to the appellant. During the course of inquiry, the statements of Gulbahara Singh P.C.S., Moga, Gian Singh, S.D.M., Moga, and Ram Kumar, Assistant Treasury Officer were recorded and the plaintiff only cross-examined Gulbahara Singh, but he did not cross-examine the other witnesses on the day when his statement was recorded. During the course of inquiry, the statements of Gulbahara Singh P.C.S., Moga, Gian Singh, S.D.M., Moga, and Ram Kumar, Assistant Treasury Officer were recorded and the plaintiff only cross-examined Gulbahara Singh, but he did not cross-examine the other witnesses on the day when his statement was recorded. Appellant also appeared before the Enquiry Officer as his own witness and thereafter, a well detailed reasoned report was submitted by the Inquiry Officer. It is categorically admitted by the appellant that when he stepped into the witness box before the learned lower Court that the inquiry was held for an embezzlement of Rs. 33,363/- for refund of non-judicial stamp papers and he had appeared in the inquiry and cross-examination the witnesses. He also admitted that he received show cause notice and personal hearing was also given to him. It has been finally argued by the learned Counsel for the appellant that the punishment imposed was highly excessive in the circumstances of the case and the Court should interfere with it. This contention of the learned Counsel is also liable to be noticed only for the sake of rejection since the Civil Court is not required to step into the shoes of punishing authority and moreover, the Civil court is not to sit in judgment against the punishment imposed by the punishing authority. Furthermore, when it is a case of embezzlement of public money, terminating his service on that account, cannot be held to be excessive in any manner. 13. For the reasons recorded above, finding no merit in the appeal, the same is dismissed with no orders as to costs.