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Allahabad High Court · body

2007 DIGILAW 868 (ALL)

Babu Ram v. District Magistrate, Sitapur

2007-04-06

S.S.CHAUHAN

body2007
Judgment Per S.S. CHAUHAN, J. By means of the present writ petition the petitioner has challenged the dismissal order dated June 24, 1992, on the basis of which he has been dismissed from service from the post of Collection Amin. 2. The facts giving rise to the present petition are that the petitioner was appointed as Collection Amin on May 9, 1977 and since then he was discharging his duties. He was placed under suspension on August 20, 1991 and thereafter a charge-sheet was issued to him on August 22, 1991 to which he submitted reply on September 16, 1991. The departmental proceedings thereafter proceeded by giving opportunity to the petitioner and the impugned dismissal order was passed on June 24, 1992. The petitioner was given opportunity of cross-examination during the course of inquiry and so no procedural error is evident from the enquiry. 3. The submission of the learned counsel for the petitioner is that with the placement of petitioner under suspension on August 20, 1991 an F.I.R. was lodged against the petitioner on July 29, 1991. The departmental proceedings as well as the criminal trial proceeded simultaneously and the petitioner was acquitted in the criminal charge on February 15, 2001. After the conclusion of the departmental proceedings the petitioner was dismissed from service by means of the impugned order dated June 24. 1992. He further submits that the opposite parties should have waited for the conclusion of the criminal trial especially when the charge in the criminal trial and in the• disciplinary proceedings was the same, but in spite of that the opposite parties proceeded to dismiss the petitioner from service. He also submits that the charge being the same in the. departmental proceedings as well as in the criminal trial, the petitioner is entitled for reinstatement after this acquittal in criminal case on February 15,2001. 4. In support of his contention, learned counsel for the petitioner has placed reliance upon the judgment of the Apex Court rendered in the case of G.M Tank v. State of Gujarat and others (2006) 5 SCC 446 : 2006-II1-LLJ-1075 and submits that the petitioners dismissal order is liable to be quashed and the petitioner is entitled for reinstatement. 5. 4. In support of his contention, learned counsel for the petitioner has placed reliance upon the judgment of the Apex Court rendered in the case of G.M Tank v. State of Gujarat and others (2006) 5 SCC 446 : 2006-II1-LLJ-1075 and submits that the petitioners dismissal order is liable to be quashed and the petitioner is entitled for reinstatement. 5. The learned Additional Chief Standing counsel on the basis of counter-affidavit has contended that apart from the charge of temporary embezzlement there was another charge of disobedience on the part of the petitioner for which he was proceeded departmentally. The charge in the departmental proceedings and in the criminal trial was No. 1, but so far charge No.2 is concerned, that was not the subject matter of the criminal trial. The petitioner, therefore, cannot claim reinstatement and the appointing authority is the best Judge in the circumstances to award punishment as required under law. The further submission is that although there is no embezzlement and the money has been 51 deposited back, but inspite of that the conduct of the petitioner amounts to temporary embezzlement. 6. I have heard learned counsel for the parties and gone through the record. 7. The impugned order of dismissal contains two charges. The first charge is with regard to the embezzlement of Rs. 5,000/-, which was the main charge and misconduct against the petitioner on the basis of which disciplinary proceedings were drawn and the petitioner was proceeded departmentally. The opposite parties also launched criminal prosecution against the petitioner, but before the criminal trial could be concluded the petitioner was dismissed from service. The petitioner pursued his remedy before the Criminal Court and ultimately on February 15, 200 I the petitioner was acquitted in the criminal trial. The petitioner has challenged the dismissal order soon after it was passed against him in the year 1992. The writ petition is pending since then and in the meantime the trial of the petitioner has been concluded and the t judgment and order dated February 15, 2001 has been placed on record by means of supplementary affidavit. The learned Additional Chief Standing counsel could not deny the acquittal of the petitioner. The judgment and order dated February 15, 2001 clearly indicates that the petitioner has been given clean acquittal and the opposite parties were not able to prove the embezzlement against the petitioner. 8. The learned Additional Chief Standing counsel could not deny the acquittal of the petitioner. The judgment and order dated February 15, 2001 clearly indicates that the petitioner has been given clean acquittal and the opposite parties were not able to prove the embezzlement against the petitioner. 8. First charge with regard to the embezzlement against the petitioner in the light of the judgment and order dated February 15, 2001, by means of which the petitioner has been given clean acquittal, cannot be sustained and comes to an end in view of the law laid down by the Apex Court in the case of G.M Tank v. State of Gujarat and others (supra). The dismissal of the petitioner based on the charge of embezzlement (temporary), therefore, cannot be sustained and to that extent is illegal. 9. So far charge No.2 is concerned, the petitioner was required to produce the record before the competent authority, but the petitioner avoided to present the documents. 10. Learned counsel for the petitioner submits that this charge was not sufficient for dismissal of the petitioner and taking the charge to be correct on the face of it, even then the authority cannot dismiss the petitioner from service and moreover, no reasonable or prudent man could take such a decision for dismissing a person on the basis of such a minor misconduct. The law in regard to award of punishment has been settled and it has been said time and again by the Apex Court that when a punishment shocks the conscience of the Court then the Court can relegate the matter to the appointing authority to take a decision in the existing circumstances. 11. In the present case, I have gone through the impugned order and the impugned order indicates that the petitioner was found responsible for non-producing the documents. Before the authority concerned. Now this minor misconduct of non-producing the documents before the competent authority will whether lead to dismissal, is a question to be answered by the appointing authority only. The decision to dismiss the petitioner, therefore, taken in reference to the charge No. 1, which was with regard to embezzlement, stands abolished and so whether the services of the petitioner can be dismissed with respect to charge No.2. The decision to dismiss the petitioner, therefore, taken in reference to the charge No. 1, which was with regard to embezzlement, stands abolished and so whether the services of the petitioner can be dismissed with respect to charge No.2. From the record and the entire evidence, this Court feels that the appointing authority will not be in a position to award the punishment of dismissal against the petitioner and in the changed circumstances it is necessary that the matter should be relegated to the appointing authority to award any lesser punishment with regard to second charge. The impugned order of dismissal, therefore, cannot be sustained and it deserves to be quashed. 12. The writ petition is, accordingly, allowed and a writ in the nature of certiorari is issued quashing the impugned order of dismissal dated June 24, 1992. A writ in the mandamus is also issued to the appointing authority to pass a fresh order considering the charge No. 2 and reinstate the petitioner in accordance with law. The petitioner shall be at liberty to submit proper evidence before the authority concerned that he has not worked for the entire period and he was not in any gainful employment anywhere. If the appointing authority comes to the conclusion that the petitioner was not in any gainful employment anywhere, then he would be entitled for consequential benefits in accordance with law.