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2007 DIGILAW 1088 (RAJ)

Madan Mohan Ahir v. State of Rajasthan

2007-05-22

GYAN SUDHA MISRA, KHEM CHAND SHARMA

body2007
Honble SHARMA, J.–These three appeals have been preferred against the common judgment and order dated 24.1.1996 passed by the learned Single Judge who had been pleased to dismiss the three writ petitions filed by the appellant-Madan Mohan Ahir challenging the order of dismissal from the service of Patwari. (2). It is stated that three orders incorporating separate charges were issued on the appellant-Madan Mohan Ahir while functioning on the post of Patwari for 18 years and as per the charges incorporated and served on the appellant, it indicated that he had been alleged to have misappropriated Rs. 100/- while holding auction for plot of land and the allegation was that he had undervalued the property and auctioned it at Rs. 100/- only. The auction, therefore, was ordered to be cancelled by the competent authority and hence the appellant was legally required to refund Rs. 100/- to the auction purchaser. The auction purchaser initially lodged a FIR complaining that although the auction had been cancelled, the amount of Rs. 100/-, which had been realised from him by the appellant, was not refunded to him. On the basis of this charge, an inquiry was initiated and charge was framed against the appellant alleging misappropriation of Rs. 100/-. A separate inquiry was initiated in regard to this charge wherein the appellant came up with the defence that there had been no misappropriation of Rs. 100/- as this amount had been refunded to the auction purchaser on the same date. Later, he also filed an affidavit confirming the fact that the appellant in fact had refunded the amount of Rs. 100/- to him. The Inquiry Officer, however, inferred that merely refunding the amount to the auction purchaser, when the inquiry was initiated against him, do not amount to absolving the delinquent of the charge of misappropriation and we find no infirmity in this reasoning for if the amount refunded by the person concerned was refunded after he was booked for misappropriation, the same cannot be held not to have been proved. (3). The contention raised on behalf of the appellant that he had refunded the amount to the auction purchaser on the same date is not corroborated, by the evidence adduced before the Inquiry Officer and, therefore, denial on this count by the counsel for the appellant to protect the appellant from the charge of misappropriation cannot be appreciated at the stage of appeal. We, therefore, do not feel justified in re-appreciating the charge against the appellant who had been granted adequate opportunity to place his defence and having participated in the inquiry as also the opportunity to lead evidence at the stage of enquiry cannot now be allowed to urge the appellate court to re- appreciate the evidence at the stage of appeal and, therefore, we see no reason why we should enter into the correctness of the finding recorded by the Enquiry Officer. (4). The second charge was framed against the appellant alleging that he had entered into serious irregularities while recording mutation in regard to a plot of land and a third charge was also framed against the appellant regarding negligence of duty in maintaining mutation records. Therefore, two more separate inquiries were initiated against the appellant and he was held guilty of the charges. (5). The counsel for the appellant therefore had filed three writ petitions before the learned Single Judge challenging each inquiry report but the same were consolidated by the learned Single Judge and all the three writ petitions were dismissed by a common order as already stated hereinbefore. (6). Since the matter was decided by a common order, in our view one appeal should have been preferred by the appellant but he has justification to file three appeals on the plea that as three inquiries had been conducted for which three separate inquiry reports had been furnished and three separate orders of dismissal have been passed, he had to file three writ petitions. But even if there were valid reasons to file three separate writ petitions, we find no reason for filing separate appeals as all the three writ petitions had been decided by a common order and once the matter was decided by a common order, one consolidated appeal only ought to have been filed by the appellant as ultimately the order of dismissal could not have been made effective by dismissing the delinquent three times. The appellant had not been engaged in three different services and he had been functioning merely as a Patwari; so once an order of dismissal was passed, obviously that had to be treated as a common order is so far as punishment of dismissal is concerned. (7). The counsel for the appellant Mr. The appellant had not been engaged in three different services and he had been functioning merely as a Patwari; so once an order of dismissal was passed, obviously that had to be treated as a common order is so far as punishment of dismissal is concerned. (7). The counsel for the appellant Mr. Soni made an endeavor to impress upon this court that the finding recorded by the Inquiry Officer in regard to the charges levelled against him should not be held to have been proved, but having heard him at some length, we prima facie do not find any perversity in the order passed by the Inquiry Officer specially in the wake of the fact that the appellant had failed to disprove the charges, which were in regard to misappropriation of Rs. 100/- while holding the auction and dereliction of duty in doing the mutation entries and maintaining the records in regard to the mutation proceedings. (8). The next question, thereafter, arises as to whether the appellant having discharged the duties as Patwari for more than 18 years should have been imposed the extreme penalty of dismissal or a lighter punishment could meet the ends of justice. (9). In this regard, the Government Advocate Mr. S.S. Sharma submitted that the magnitude of the charge levelled against the appellant, who was discharging the duties of Patwari cannot be treated lightly as in that capacity he was entrusted with serious responsibility of mutation entries and the charge of manipulation in the mutation entry and not maintaining the record with rectitude, could not have been brushed aside coupled with the fact that the appellant also had not behaved in an impeccable manner while holding the auction as he had refunded the amount only when a FIR was lodged by the auction purchaser. (10). (10). We have to bear in mind that the gravity of the offence of misappropriation cannot be treated as an offence of a lesser magnitude merely considering the megre amount, which is involved in the offence and hence we find substance in the contention that the appellant, who had been discharging the duties of a Patwari was assigned with the important responsibility of maintaining the land record carefully and honestly which ultimately is the root cause for revenue litigations and if its tampering and poor maintenance is viewed with seriousness, obviously the punishment could not have been awarded of a lighter nature. The order of dismissal from service, therefore, do not deserve to be treated lightly. (11). The fall out of the order of dismissal, however, results into the consequence of deprivation of the benefit of 19 years of regular service which was still left to his credit, had he not been dismissed from service and prior to this the appellant had already served for more than 18 years. The consequence of his dismissal is that he would be deprived even of the pensionary benefits to which he would have been entitled if he had reached the age of superannuation in the normal course. Thus, we find that the appellant, on the one hand, has been deprived of the benefit of 19 years of service, which was still left to his credit prior to his dismissal and thereafter he has also been deprived of the pensionary benefit although he had served for 18 years prior to his dismissal. We are of the view that the punishment of this nature might be dual and an extremely stringent punishment and hence in the interest of equity and justice, we prefer to follow the ratio of the judgment and order passed by the Supreme Court delivered in the matter of Husaini vs. The Hon. Chief Justice of High Court of Judicature at Allahabad and Ors., reported in AIR 1985 SC 75 wherein the appellant who was a low paid Safai-Jamadar was dismissed from service on account of the charge having been proved against him. However, the learned Judges were pleaded to observe as follows: ``We do not propose to minimise the gravity of his misconduct for which the High Court thought fit to impose maximum punishment of dismissal from service simultaneously denying him all retiral benefits. However, the learned Judges were pleaded to observe as follows: ``We do not propose to minimise the gravity of his misconduct for which the High Court thought fit to impose maximum punishment of dismissal from service simultaneously denying him all retiral benefits. Without in any manner detracting from the view taken by the High Court we are of view that there is some scope for taking a little lenient view in the matter of punishment awarded to the appellant. The lenience if at all would render the post dismissal life of the low paid employee a little tolerable and keep him away from the penury and destitution. (12). The learned Judges went on to add: ``how much is the cushion or the elbow room in the matter of punishment? Appellant cannot be reinstated in service. He must remain out of his last employment. Therefore, the only course open to us is to convert the order of punishment into one of compulsory retirement so that while denying service to the appellant he will be ensured retiral benefits." (13). Following the ratio of this judgment in regard to quantum of punishment, we deem it just and appropriate to convert the order of dismissal into one of compulsory retirement so that the appellant, who had been dismissed after rendering 18 years of service, and had 19 more years of service to his credit and was deprived of this period, can avail the pensionary benefits by computing the period of service of 18 years which he had discharged as Patwari without any complaint. (14). The appeals, thus, are dismissed subject to the relief of grant of pensionary benefit to the appellant by converting the order of dismissal into one of compulsory retirement. However, no cost shall be awarded.