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2007 DIGILAW 444 (PNJ)

Dayanand v. State Of Haryana

2007-03-14

ASHUTOSH MOHUNTA

body2007
Judgment Ashutosh Mohunta, J. 1. Through this writ petition under Article 226 of the Constitution of India the petitioner has sought quashing of order dated 10.9.2004 (Annexure P-6) awarding the punishment of censure and restricting the suspension period to the extent allowances already paid and further to quash order dated 17.9.2005 (Annexure P-8) dismissing the appeal of the petitioner. 2. The brief facts of the case are that the petitioner while working as Accountant in the Haryana Roadways, Rohtak, was suspended vide order dated 14.5.2001. He was charge-sheeted on 28.11.2002 under Rule 7 of the Haryana Civil Services (Punishment and Appeal)Rules, 1987 (Annexure P-1). He submitted his reply to the charge sheet on 10.3.2003 (Annexure P-2). Considering his reply unsatisfactory enquiry officer was appointed. The petitioner was served show cause notice (Annexure P-3) on 6.5.2004 who submitted his reply (Annexure P-5) to the show cause notice on 18.52004. Enquiry officer gave his enquiry report (Annexure P-4) holding the petitioner to be partly responsible for negligence in performing his duties. 3. The main contention of the learned counsel for the petitioner is that the allegation of connivance of petitioner with Shri Krishan Lal Khurana was not proved at all because the punishing authority has itself observed that it is correct that he was not responsible for custody of the cash in any manner because the same was supposed to be with DDO and Assistant Cashier and that the cash balance used to be physically checked only once i.e. at the end of each month. It is argued that the petitioner was not found to be a participant or an accomplice in the commission of fraud. The only basis for charge- sheeting him is that had he been a little more vocal in expressing his views, he could have prevented the loss. Only on the basis of this observation the enquiry officer found him responsible for negligence in performing his duties, which is not justifiable. 4. The learned counsel for the petitioner has further argued that the petitioner was suspended on 14.5.2001 without issuing the charge sheet and the charge sheet was issued to the petitioner later on i.e. 28.11.2002. However, the petitioner was reinstated during the inquiry on 26.4.2004. The petitioner remained under suspension from 14.5.2001 to 26.4.2004 that is for about three years. 4. The learned counsel for the petitioner has further argued that the petitioner was suspended on 14.5.2001 without issuing the charge sheet and the charge sheet was issued to the petitioner later on i.e. 28.11.2002. However, the petitioner was reinstated during the inquiry on 26.4.2004. The petitioner remained under suspension from 14.5.2001 to 26.4.2004 that is for about three years. According to the learned counsel if the respondents would have acted as per the Government instructions it was incumbent upon the respondent authorities to complete the enquiry within six months. In this way the respondent authorities are guilty of delay and have flouted the spirit of mandatory government instructions. Therefore, instead of restricting suspension period to the extent of subsistence allowance already paid is not justifiable. 5. It is submitted by the learned counsel that the suspension is only justified when major punishment is to be imposed but in the instant case the petitioner was only awarded censure punishment. So once the punishment of censure has been awarded to the petitioner, the suspension becomes unjustified and the petitioner is entitled for full wages for the period of suspension, hence the Annexures P-6 and P-8 deserve to be quashed. 6. The learned counsel has further argued that the respondent appellate authority has dismissed the appeal of the petitioner without considering the material facts of the case. 7. The learned counsel for the petitioner has relied on the decision of the Division Bench of this Court tilted as Makhan Singh v. State of Punjab and others, CWP No. 1761 of 1999 wherein it is held that where two increments are stopped without cumulative effect period of suspension has to be treated on duty. 8. The learned counsel for the petitioner has also relied on Union of India and others v. Raj Kishore Parija, 1995 Supp (4) SCC 235 and Depot Manager, A.P. State Road Transport Corporation, Hanumakonda v. V. Venkateshwarulu and another, 1994 Supp (2) SCC 191 to support the case of the petitioner. 9. On the other hand, the learned counsel for the State contends that during the tenure of the petitioner from the period 8.7.1999 to 14.5.2001 various acts and omissions and embezzlements of the amounts of Rs. 27,15,515/- have taken place as a result of which huge loss to the government has occurred. 10. 9. On the other hand, the learned counsel for the State contends that during the tenure of the petitioner from the period 8.7.1999 to 14.5.2001 various acts and omissions and embezzlements of the amounts of Rs. 27,15,515/- have taken place as a result of which huge loss to the government has occurred. 10. Learned counsel for the State further contended that the petitioner was working as Accountant at that time and he was Incharge of Cash Branch. His main duty was to check cash book and other subsidiary books daily. The petitioner was aware of the nexus between the Assistant Cashier and the Drawing and Disbursing Officer who used to misappropriate the cash temporarily from time to time, but the petitioner failed to point out the same. Had the petitioner taken a little care the huge loss to the government would have been avoided. Therefore, the petitioner was placed under suspension on 14.5.2001 and the petitioner was charge sheeted under Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules, 1987. Pending disciplinary proceedings the petitioner was reinstated. 11. The learned counsel for the State contended that the petitioner was given reasonable opportunity to reply to the charges against him and he submitted his reply on 21.12.2002 which was not considered satisfactory. Hence, a regular enquiry was ordered. Show cause notice was served. The petitioner submitted the reply to the show cause notice. Enquiry Officer after holding the enquiry held the petitioner partly responsible for negligence in performing his duties and awarded him punishment of censure and restricted his suspension period to the extent of allowances already paid. 12. After considering the contentions raised, I am of the opinion that huge loss of Rs. 27.15 lacs has occurred to the government because of negligence of the petitioner in not pointing out the nexus between the Assistant Cashier and the Drawing and Disburing Officer at the relevant time. Had the petitioner acted diligently and had disclosed the nexus at the beginning, the loss of Rs. 27.15 lacs which the government had suffered would have been avoided. Hence, punishment of censure and restricting suspension period to the extent of subsistence allowance already paid is not excessive. The appeal of the petitioner was rightly dismissed by the appellate authority after considering the material facts and circumstances of the case. 13. 27.15 lacs which the government had suffered would have been avoided. Hence, punishment of censure and restricting suspension period to the extent of subsistence allowance already paid is not excessive. The appeal of the petitioner was rightly dismissed by the appellate authority after considering the material facts and circumstances of the case. 13. In my opinion the authority relied upon by the counsel for the petitioner Union of India and others v. Raj Kishore Parija (supra) is not applicable to the facts of this case as in the case in hand only punishment of censure has been awarded to the petitioner which is not an excessive punishment in view of his glaring act of negligence. 14. The learned counsel for the petitioner has also relied on Union of India and others v. Raj Kishore Parija (supra) and Depot Manager, A.P. State Road Transport Corporation, Hanumakonda v. V. Venkateswaruly and another (supra). The ratio of these cases is not applicable to the case in hand, facts being different as in the present case reasonable opportunity of being heard has been given to the petitioner. 15. In view of the above, the petition is devoid of merits and is dismissed.