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Allahabad High Court · body

2007 DIGILAW 700 (ALL)

SHRI SHANKER BAJPAI v. STATE OF UTTAR PRADESH

2007-03-21

RAKESH TIWARI

body2007
JUDGMENT Hon’ble Rakesh Tiwari, J.—Heard Counsel for the parties and the Standing Counsel. 2. The petitioner has been visited with a major punishment of dismissal from service just prior to three months from his date of retirement from service. 3. The case of the petitioner is that he had been assigned duty for disbursement of cash amount which is the duty of the Cashier. It is stated that the petitioner was class IV employee working on the post of Potdar. The qualification of the petitioner is High School and the work assigned to him was only to accept the money from the public and deposit the same to the cashier or to the Assistant Cashier on daily wages. A Potdar is only a helping hand to the cashier for day to day work and works under the direction of the cashier or the Assistant cashier with whom he may be attached on day to day basis. 4. It is submitted on behalf of the petitioner that office memorandum dated 22.9.94 prescribes the work of maintenance of cashbook and other things to the account clerk of the pension Anubhag. The second grade clerk and daily wages clerk are also posted who are assigned the aforesaid maintenance of cash book and other records in the pension department. Working on the post of Potdar the petitioner has nothing to do with the aforesaid work of maintenance of cash books or disbursement of cash account, which has been clearly assigned to the accounts clerk and assistant accounts clerk, the Assistant Cashier and the Cashier. 5. It is submitted that in 1996 some irregularities were reported in the pension department of the Nagar Nigam, Allahabad and one Sri Rameshwwar Prasad Mishra, Accounts clerk of the pension department was suspended. Thereafter his services were terminated on various grounds which includes non maintenance of cash book and other account along with other charges. The department also conducted enquiry with regard to the alleged embezzlement and all of sudden the petitioner has been falsely implicated without any material or basis. He was issued show cause notice which was replied by him, and now the impugned order of dismissal has been passed against him and direction for recovery of the money from him has been issued without giving him any opportunity of hearing. 6. He was issued show cause notice which was replied by him, and now the impugned order of dismissal has been passed against him and direction for recovery of the money from him has been issued without giving him any opportunity of hearing. 6. It is not denied in the Counter affidavit filed by the Additional Municipal Commissioner that the petitioner was working on the post of Potdar whose duty is to work under the direction of Cashier/ Assistant Cashier; that he is a helping hand to them and maintain certain registers (not specified); that the promotional post of Potdar is Accounts clerk. It is also stated that the petitioner had distributed cash payments to the pensioners. But no specific instance or record has been produced in this regard. It is also not denied in the counter affidavit that it is not the duty of the Potdar to disburse cash amount and maintain cash ledgers, cash boooks etc. which is the duty of the Cashier, Assistant Cashier and Accounts clerks. It is averred in para 4 of the Counter that “ in the year 1996, some irregularities were reported in the Pension department of Nagar Nigam and on enquiry one Rameshwar Pd. Mishra was found guilty and his services was terminated, but the said termination order has been stayed by this Hon’ble Court. Vide letter dated 27.10.1988 the matter of irregularities was referred to State Government for enquiry through C.B.C.I.D. And the matter was under investigation. Thereafter in departmental enquiry the name of petitioner was emerged and a charge sheet was issued to him with charges, he has given his reply and his statement was recorded by Sri R.C. Srivastava. The respondent No. 4 vide order dated 4.12.2004 has terminated the services of the petitioner. Petitioner filed writ petition in which this Hon’ble Court has been pleased to direct the respondent No. 2 to decide the appeal within two months, vide order dated 12.12.2004. Thereafter the petitioner submitted his appeal before respondent No. 2, who has dismissed the appeal of the petitioner vide order dated 7.1.2006. Now the petitioner has filed the present writ petition before this Hon’ble Court for quashing the orders of respondent No. 4 and 2. The writ petition has no force and is liable to be dismissed by this Hon’ble Court. 7. Now the petitioner has filed the present writ petition before this Hon’ble Court for quashing the orders of respondent No. 4 and 2. The writ petition has no force and is liable to be dismissed by this Hon’ble Court. 7. In fact it suffers from the averments made in the writ petition and the counter affidavit that the petitioner was working on the post of Potdar w.e.f. 18.7.1997 and that according to the recommendation of the Pay Commission it has been made equivalent to the post of IInd Grade Clerk from which promotion is made to the post of Accounts clerk, i.e. The post of Potdar and IInd Grade clerk are now feeder post for the promotional post of Accounts clerk but the qualification and duties assigned to these posts of Accounts clerk and of Potdar have been given by respondents in para 8, 9 and 11 of the Counter Affidavit as under : (8) that after the recommendation of pay commission, the post of Potdar is equal to the post of IInd Grade clerk and the promotion of the said post is in the grade of Accounts clerk. Work of cash is to be taken by Potdar under which it is compulsory to maintain the financial rules which has not been done by the petitioner hence he is guilty of irregularities. (9) that it is submitted that according to petitioner, the educational qualification of Potdar is High School whereas according to Pay Commission of 1979-80, the educational qualification of the post of Potdar is Intermediate. The petitioner is a Graduate candidate. The work of Potdar is that after collecting the cash from the public, he deposits the same with Cashier/Asstt. Cashier, under the provisions of Rules. (11) That in reply to the contents of paragraph 7 of the writ petition it is submitted that according to the petitioner that the duty of 3rd grade employee has been assigned but the duty of Potdar has not been assigned. In reply it is submitted that the petitioner was working on the post of Potdar and his duty was to enter the amount in the Form/Register which he collects from the public but instead of this, the petitioner is to maintain the instruction of the Cashier/Asstt. Cashier and other departmental work. It has further been averred that irregularities committed by the petitioner is not justified hence he was guilty. Cashier and other departmental work. It has further been averred that irregularities committed by the petitioner is not justified hence he was guilty. What irregularities have been committed by the petitioner have not been specified. If the respondents mean that the petitioner has distributed cash then in that case the Cashier, Assistant Cashier and Accounts clerk who were charged with duty of distribution of cash and maintenance of cash account and cash book might have committed irregularities but certainly it cannot be said that the petitioner is guilty as cash box is not even entrusted to a Potdar. 8. It is apparent from records that Rameshwar Misra was found guilty for the irregularity/embezzlement and his services were terminated for the misconduct, but as the order of his termination has been stayed by the High Court, the petitioner has been made scape goat to shield the actual persons responsible for handling cash box for disbursement of the cash amount to the pensioners as the matter had been referred to the State Government for enquiry through C.B.C.I.D. Which admittedly is under investigation. Hence in these circumstances it cannot be said at this stage that petitioner is guilty for investigation is still being made by the C.B.C.I.D. 9. Admittedly also no opportunity of evidence and hearing has been given to the petitioner to defend himself. The petitioner has been proved to be guilty on the basis of knowledge and enquiries made in violation of principles of natural justice for conveniently passing the impugned orders dated 4.12.2004 and 7.1.2006 against the petitioner. 10. It is also apparent that the work of the petitioner as Potdar is to collect cash from public (not disbursement of cash), deposit the same with cashier under the provisions of financial rules according to the instructions of the Cashier and perform other departmental work. 11. Thus after hearing learned Counsel for the petitioner and perusal of record, I find, substance in his contention that the post of Potdar which the petitioner holds is not a post for disbursement of cash. It is class IV post. It is not his duty to maintain the cash book and to discharge the work of disbursement of money. 11. Thus after hearing learned Counsel for the petitioner and perusal of record, I find, substance in his contention that the post of Potdar which the petitioner holds is not a post for disbursement of cash. It is class IV post. It is not his duty to maintain the cash book and to discharge the work of disbursement of money. As stated above he was only a helping hand working under the direction of his superior, how he can embezzle money when work of disbursement of cash never entrusted by the Cashier to any employee much less a class IV employee. 12. It appears that the petitioner has been made a scape goat just prior to three months of his retirement for ulterior motive as Nagar Nigam is facing financial crunch and has not paid retiral dues to a large number of its class IV employees for years together. The action of the Nagar Nigam appears to be with malafide intention. 13. For all these reasons stated above, the writ petition is allowed. The order dated 7.1.2006 passed by the Commissioner Region, Allahabad and order dated 4.12.2004 passed by the Nagar Ayukt, Nagar Nigam, Allahabad are set aside. The petitioner shall be deemed to be reinstated and continuous in service till his retirement. He shall be entitled and paid for all dues admissible under the service rules and arrears of pay and allowance etc. within three months from the date of production of a certified copy of this order before the respondent-department. ————