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2011 DIGILAW 308 (GAU)

Prantish Chiran v. State of Tripura

2011-04-06

BIPLAB KUMAR SHARMA, C.R.SARMA

body2011
JUDGMENT 1. This appeal is directed against the judgment and order dated 13.12.2004 passed by the learned Single Judge in the writ petition being Civil Rule No. 38/1995/Re-W.P. (C) No. 391 of 2004 by which the writ petition filed by the Petitioner against the order of penalty imposed pursuant to a departmental proceeding, has been dismissed. 2. Shortly stated the facts leading to filing of the instant appeal are that the Petitioner/Appellant while serving as Managing Director of Killa Lamps Ltd., a departmental proceeding was drawn up against him by memorandum of charge sheet dated 16.11.1984. All together nine charges were leveled against the Petitioner which are as follows - ANNEXURE-I STATEMENT OF ARTICLES OF CHARGE FRAMED AGAINST SHRI PRANTISH CHIRAN, CO-OPERATIVE AUDITOR AND THE THEN MANAGING DIRECTOR OF KILLA LAMPS LTD., UDAIPUR, SOUTH TRIPURA. ARTICLE-I That due to prolonged absence as well as absence off and on of Shri Prantish Chiran, Co-operative Auditor while functioning as Managing Director of Killa Lamps from his duties the work of the Society suffered to a greatest extent and a resolution was passed in a Board's meeting held on 24-9-1983 in respect of his habitual absence from duties but this was not recorded in the Minute Book of the Society and signed by the President of the Society taking the simplicity of the President, Shri Taranhari Jamatia. Due to his habitual absence from duties the salary of the staff could not be disbursed in due time and the daily sale proceeds could not be taken over by him on the very date of sale. Thus Shri Chiran, Co-operative Auditor and the then Managing Director of Killa Lamps Ltd. did not maintain the absolute integrity, devotion to duty and acted in a manner which is unbecoming of a Government servant. ARTICLE-II That Shri Chiran while functioning as Managing Director of Killa LAMPS Ltd withdrawn a total amount of Rs. 71,646.45p. from the Bank's Account without any sufficient reason for the period from 11-7-1983 to 9-1-84 inspite of having sufficient cash balance in hand. Withdrawal of the above amount is doubtful and Shri Chiran is held liable for such withdrawal of the money from the Bank as stated above and keeping huge amount of cash balance in hand unusually. Thus Shri Chiran acted in a manner which is unbecoming of a Government servant. ARTICLE-III That Shri Prantish Chiran, Co-operative Auditor, Ex. Withdrawal of the above amount is doubtful and Shri Chiran is held liable for such withdrawal of the money from the Bank as stated above and keeping huge amount of cash balance in hand unusually. Thus Shri Chiran acted in a manner which is unbecoming of a Government servant. ARTICLE-III That Shri Prantish Chiran, Co-operative Auditor, Ex. Managing Director of Killa Lamps Ltd. was held liable and responsible for the doubtful transaction involving an amount of Rs. 16,146.45 which included Rs. 7,225.00 for purchase of yarn on account of credit purchase from M/S Mahesh Bhandar, Udaipur on 3.12.83 vide challan No. 1 and 2 for Atharobola Branch of Killa LAMPS Ltd. But actually no such stock was physically received by that Branch and the Managing Director, Shri Chiran forged the signature of Shri Bishnu Jamatia, Salesman of the said Branch. Thus Shri Chiran did not maintain absolute integrity and acted in a manner which is unbecoming of a Government Servant. ARTICLE-IV That Shri Prantish Chiran while functioning as Managing Director of Killa LAMPS Ltd. made some entries in the Cash Book of the Society on 25-8-83, 10-10-83 and 9-1-84 personally which are most doubtful because the Accountant of the LAMPS usually wrote the Cash Book and inspite of presence of the Accountant in the station on the dates of entries in the Cash Book. As such, the transactions on the above days are of malafide. Thus Shri Chiran did not maintain the absolute integrity, devotion to duty and he acted in a manner which is unbecoming of a Government servant. ARTICLE-V That Shri Prantish Chiran, Co-operative Auditor while functioning as Managing Director of Killa LAMPS Ltd. defalcated an amount of Rs. 4,494.45 P. from the fund of the Society as the said amount was found short in cash balance on the date of physical verification of cash on 18-2-84. Thus Shri Chiran did not maintain absolute integrity, devotion to duty and acted in a manner which is unbecoming of a Government Servant. ARTICLE-VI That Shri Prantish Chiran, Ex. Managing Director of Killa LAMPS Ltd. is held liable for doubtful transaction involving an amount of Rs. 15,000/- for purchase of fingerlings without prior approval in the Board's meeting. Thus Shri Chiran is personally liable and responsible for such amount and for loss to the Society to that extent and thereby acted in a manner which is unbecoming of a Government Servant. 15,000/- for purchase of fingerlings without prior approval in the Board's meeting. Thus Shri Chiran is personally liable and responsible for such amount and for loss to the Society to that extent and thereby acted in a manner which is unbecoming of a Government Servant. ARTICLE-VII That Shri Prantish Chiran while functioning as Managing Director of Killa LAMPS Ltd. is personally liable for Rs. 2,554.00 for misappropriation from the fund of the Society on 18-3-84 on account of earth cutting and deceived the labourers as well as the Society itself for his personal gain. Thus the above act of Shri Chiran proves that he lacks devotion of duties, absolute integrity and acted in a manner which is unbecoming of a Government Servant. ARTICLE-VIII That Shri Prantish Chiran, Ex. Managing Director of the Killa LAMPS Ltd. is held liable for temporary defalcation from the fund of the Society for the following amount: Rs. 2,731.75 was realized as loan on 25-2-84 and deposited on 24-4-84. Rs. 80.25 was realized as loan on 6-3-84 and deposited on 24-4-84. Rs. 4,000.00 was realized as part amount from the Salesman on 20-3-84 as defalcated amount and deposited on 24-4-84. Shri Chiran, therefore, acted in a manner which is unbecoming of a Government Servant. ARTICLE-IX That Shri Prantish Chiran, Ex. Managing Director of Killa LAMPS Ltd. is personally held liable and responsible for improper and irregular maintenance of Cash Book, Stock Book, Minute Book etc. which is in contravention of the Bye-law No. 30 of the Society. Thus Shri Chiran acted in a manner which is unbecoming of a Government Servant. 3. In due course, the enquiry proceeding was drawn up against the Petitioner by appointing the enquiry officer and examining the witnesses and exhibiting documents. On conclusion of the enquiry, the Petitioner/Appellant was imposed with the penalty of reduction in pay by order dated 20.8.1992. It will be pertinent to mention here that the inquiry officer in his report held the charge No. 1 to have been proved partially and the charge No. 6 to have been proved conclusively. Other charges were held not to be proved. Thereafter the disciplinary authority imposed the aforementioned penalty by its order dated 20.8.1992. For a ready reference the order is quoted below - No.F.8-INQ/COOP/LAW/84 GOVERNMENT OF TRIPURA OFFICE OF THE REGISTRAR OF COOPERATIVE SOCIETIES Dated, Agartala, the 20th August, 1992 ORDER 1. Other charges were held not to be proved. Thereafter the disciplinary authority imposed the aforementioned penalty by its order dated 20.8.1992. For a ready reference the order is quoted below - No.F.8-INQ/COOP/LAW/84 GOVERNMENT OF TRIPURA OFFICE OF THE REGISTRAR OF COOPERATIVE SOCIETIES Dated, Agartala, the 20th August, 1992 ORDER 1. A disciplinary proceedings was initiated against Shri Prantish Chiran, Auditor(Coop) vide Memorandum No. F. PRS-407/Coop/79-Vol-II dated 16.11.84. Nine charges were framed against Shri Prantish Chiran in respect of his conduct, which is unbecoming of a Government Servant, during his tenure as Managing Director of Killa LAMPS Ltd." 2. Shri Chiran denied all the charges. Subsequently an inquiry was conducted as per provision of Rule-14 of the C.C.S (C.C.A.) Rules. The Inquiring authority in his order dated 12.11.90 has mentioned that out of nine charges one charge (Article-I) has been proved partially and another charges (Article-VI) has been proved fully and conclusively. 3. Charge No. 1(Article-I) framed against Shri Prantish Chiran refers to lack of devotion to duty and non-maintenance of absolute integrity on the ground of his (i) frequent absence from his duties (ii) non-recording of the resolutions of the Managing Committee held on 24.9.83 (ii) Non-disbursement of salaries to the staff of Killa LAMPS in due time and (iv) irregularities in the matter of taking over daily sale proceeds of the society. 4. During inquiry it has been proved that Shri Prantish Chiran was not regular in his duty during his working period at Killa LAMPS Ltd. to the post of Managing Director. This omission amounts to lack of devotion to duty on the part of Shri Chiran. Accordingly, I held Shri Chiran guilty for his omission. It is, therefore, ordered that the pay of Shri Chiran shall be reduced by 1(one) stage from Rs. 2030/- to Rs. 1975/- in the time scale of pay of Rs. 1300-50-1700-55-2140-60-3220/- for a period of 1 year with effect from the date of order. It is further ordered that Shri Chiran will not earn increment of pay during the period of reduction and that on the expiry of this period the reduction will have the effect of postponing his further increments of pay. Article of charge VI is in respect of conduct of Shri Chiran in connection with doubtful transaction for purchase of fingerlings on behalf of the society. Article of charge VI is in respect of conduct of Shri Chiran in connection with doubtful transaction for purchase of fingerlings on behalf of the society. During inquiry it has been revealed that Shri Chiran made the entire alleged deal keeping the President and the Board of Directors of the Society in complete dark. The Inquiring Authority has held that the charge has been proved conclusively. On perusal of the records and evidences produced during inquiry, I am convinced that Shri Chiran is guilty in respect t of charge VI for doubtful transaction in connection with purchase of fingerlings, which is unbecoming of a Government Servant. Accordingly, I impose penalty of reducing the pay of Shri Chiran by 2 stages from Rs. 1975/- to Rs. 1865/- for a period of 3 years. It is further directed that Shri Chiran will not earn increments of pay during the period of reduction and that on the expiry of this period the reduction will have the effect of postponing his future increments of pay. All the penalties mentioned above would have effect concurrently. 4. Being aggrieved by the aforesaid order of penalty the Petitioner preferred an appeal before the appellate authority which was disposed of by order dated 8.3.1994 (Annexure-L) enhancing the punishment in respect of Article of charge No. 6 as follows- 8. I propose to enhance the punishment relating to Article-VI as follows: (1) Recovery of Rs. 15,000/- from the pay of the Accused Officer in equal installment over a period of 36 months. (2) Reducing the pay of the Accused Officer to Rs. 1,300/- in the scale of Rs. 1300-1700-2140- 3220/- for a period of 5 years with further instructions that the Accused Officer will not earn increments during the period of reduction and that on the expiry of the period the reduction will have the effect of postponement of his future increments of pay. 9. I do not find any cause to change the penalty imposed in regard to Article-I of the charge. 5. After the aforesaid order passed by the appellate authority the Petitioner preferred a further representation to the Commissioner, Co-operation, Govt. of Tripura, who in turn passed the order as communicated by Annexure-N letter dated 26.12.1994 by which the enhanced penalty was withdrawn but recovery of Rs. 5. After the aforesaid order passed by the appellate authority the Petitioner preferred a further representation to the Commissioner, Co-operation, Govt. of Tripura, who in turn passed the order as communicated by Annexure-N letter dated 26.12.1994 by which the enhanced penalty was withdrawn but recovery of Rs. 15,000/- from the pay of the Petitioner/Appellant was retained and the same was to be recovered from the Petitioner's salary in equal installment over a period of 36 months. 6. It is the aforesaid impugned orders aggrieved by which the Petitioner preferred the writ petition. 7. In the counter affidavit filed by the Respondents the plea of the Petitioner in the writ petition about the alleged procedural irregularity in conducting the enquiry was denied. It was brought on record that the enquiry was as per the provision of Rule 14 of the C.C.S. (C.C.A.) Rules, 1965 observing all the required formalities. It was also stated that the witnesses were examined giving the Petitioner opportunity to cross-examine them. 8. The learned Single Judge considering the matter in its entirety has passed the impugned judgment and order dated 13.12.2004 dismissing the writ petition making a grievance against which the Petitioner has preferred the instant appeal. 9. We have heard Mr. S. Talapatra, learned Sr. Counsel assisted by Mr. M.N. Indu, learned Counsel for the Appellant as well as Mr. T.D. Majumder, learned State Counsel representing the Respondents. We have also considered the entire materials on record. 10. While Mr. Talapatra, learned Sr. Counsel for the Appellant submitted that the Petitioner/Appellant having been found guilty of charge No. 1(partially) and charge No. 6 only against nine charges brought against him, the penalty imposed is disproportionate. He also submitted that in the facts and circumstances involved in the case and on the basis of the evidence on record, the inquiry officer ought not to have held the charge No. 6 to have been established. 11. As against the aforesaid submission of Mr. Talapatra, Mr. Majumder, learned State Counsel upon a reference to impugned judgment and order submitted that the writ court cannot sit on appeal over the findings recorded by the inquiry officer and/or re-appreciate the evidence on record so as to return a different finding. He submitted that the findings arrived at by the authorities being a plausible one the writ court would be reluctant to interfere with the same. 12. He submitted that the findings arrived at by the authorities being a plausible one the writ court would be reluctant to interfere with the same. 12. We have considered the rival submissions made by the learned Counsel for the parties and have also perused the entire materials on record. 13. The charge No. 1 against the Petitioner was that of prolonged absence as well as absence off and on of the Petitioner from duty about which there was reflection in the resolution passed in the Board's meeting held on 24.9.1983. The charge No. 6 was in respect of the doubtful transaction involving the amount of Rs. 15,000/- for purchase of fingerlings without prior approval of the Board. The Petitioner/Appellant made the payment of Rs. 15,000/- to the particular person on 13.3.1984 against the bill dated 12.3.1984 for supply of 60,000 fingerlings without the approval of the Board. The transaction was entered by the Appellant himself although the accountant was physically present in the Society. 14. The enquiry officer in his finding recorded in the enquiry report has held the Petitioner/Appellant guilty of the charge No. 1 partially. While holding so, the enquiry officer referred to the deposition of PW 1 and PW 2 who had unambiguously stated in their depositions regarding habitual absence of the Petitioner from his duty. It was found that due to his prolonged absence quite frequently from duty he could not countersign the attendance register of other staffs of the Society nor he was able to take sale proceeds of the consumers' of the stores regularly and could not disburse the salary to the staffs timely. The charge was found to be proved on the basis of the cash book, sale register and pay register of the Society. 15. So far as the charge No. 6 is concerned the enquiry officer in his report has held the same to have been established in reference to the depositions made by the PWs. 2, 3, 4 and 5. PW 3 in his deposition admitted that he had sold fingerlings for the amount of Rs. 15,000/- to the Appellant. At the time of cross-examination of PWs. 2, 4 and 5 there was no suggestion on the part of the Appellant that he was duly authorized to purchase the fingerlings for the amount of Rs. 15,000/- from a private person. 16. 15,000/- to the Appellant. At the time of cross-examination of PWs. 2, 4 and 5 there was no suggestion on the part of the Appellant that he was duly authorized to purchase the fingerlings for the amount of Rs. 15,000/- from a private person. 16. On the basis of the aforesaid evidence on record the disciplinary authority passed the Annexure-J order of penalty dated 20.8.1992 referred to above. While in respect of charge No. 1 the Petitioner was imposed with the penalty of reduction in pay by one stage from Rs. 2030 to Rs. 1975/- in the time scale of pay of Rs. 1300/- to Rs. 3220/- for a period of one year with the further provision that during the period of reduction the Petitioner would not earn increments of pay, another penalty of reduction in pay was also imposed in respect of charge No. 6 which is reduction in pay by two stages from Rs. 1975/- to Rs. 1865/- for a period of three years with further provision that the Appellant would not earn increments of pay during the said period. 17. On appeal the appellate authority enhanced the penalty as indicated above. Thereafter, on a review the said authority withdrew the enhanced penalty but retained the recovery of Rs. 15,000/- from the pay of the accused/Petitioner. 18. Needless to say that the writ court exercising its power of judicial review cannot sit on appeal over the findings recorded by the inquiry authority, disciplinary authority and the appellate authority. Needless also to say that the writ court cannot re-appreciate the evidence on record. Mr. Talapatra learned Sr. Counsel for the Appellant upon a reference to the findings recorded by the inquiry officer and the disciplinary authority in respect of charge No. 6 submitted that there was failure on the part of both the authorities to appreciate the evidence correctly and in a proper manner. Such an argument cannot be accepted, inasmuch as, the findings recorded by the said two authorities cannot be said to be based on no evidence at all and/or are perverse. The appreciation of the evidence made by the said two authorities being a plausible one, the writ court exercising its writ jurisdiction cannot re-appreciate the evidence so as to come to a different conclusion. 19. The appreciation of the evidence made by the said two authorities being a plausible one, the writ court exercising its writ jurisdiction cannot re-appreciate the evidence so as to come to a different conclusion. 19. It is true that the appellate authority while entertaining the appeal filed by the Petitioner against the order of penalty dated 20.8.1992 could not have enhanced the penalty without affording the Petitioner/Appellant a reasonable opportunity of being heard. However, this aspect of the matter need not retain us, inasmuch as, on a review the said enhancement of penalty had been withdrawn. Since the Petitioner was found guilty of charge No. 6 relating to the transaction of Rs. 15,000/- which was a loss to the Society, once the said charge is held to have been established irrespective of the penalty imposed pertaining to the said charge, the Petitioner/Appellant was liable for causing loss sustained by the Society. However, this aspect of the matter escaped notice of the disciplinary authority and accordingly the appellate authority passed the order for recovery of the said amount from the pay of the Petitioner/Appellant. 20. This now leads to the question as to whether on the basis of the composite charge sheet relating to 9(nine) charges out of which two charges, one partially and one in full, have been established in the disciplinary enquiry, the Petitioner/Appellant could have been imposed with two different penalties for each one of the charges. As noticed above, the Petitioner/Appellant has been imposed with the penalty of reduction by 1(one) stage from Rs. 2030/- to Rs. 1975/- in the time scale of pay of Rs. 1300/- to Rs. 3220/- for a period of one year with the further rider that the Petitioner would not earn increments of pay during the period of reduction. For the second charge i.e. charge No. 6 he has been imposed with the penalty of reduction by two stages from Rs. 1975/- to Rs. 1865/- for a period of three years with further provision that he would not earn increments of pay during the said period. We are of the opinion that the disciplinary authority could not have imposed two different penalties for the two charges. 21. 1975/- to Rs. 1865/- for a period of three years with further provision that he would not earn increments of pay during the said period. We are of the opinion that the disciplinary authority could not have imposed two different penalties for the two charges. 21. The disciplinary proceeding was initiated against the Petitioner/Appellant on the basis of memorandum of charge sheet dated 16.11.1984 in which as many as 9(nine) charges were brought against the Petitioner/Appellant out of which two charges i.e. charge No. 1 (partially) and charge No. 6(full and conclusively) were held to be established. The Petitioner having been proceeded with in a disciplinary proceeding on the basis of the said composite charge sheet, in our considered view, he should not have been imposed with different penalties for the two charges. This resulted in multiple penalties for a single charge sheet. 22. Having regard to the facts and circumstances involved in the case and also in consideration of the fact that the charge No. 1 was partially proved, we are of the considered opinion that the penalty of reduction in pay from Rs. 2030/- to Rs. 1975/- in the time scale of Rs. 1300/- to 3220/- for a period of one year as has been provided in the order of penalty dated 20.8.1992 should be the penalty for both the charges and consequently the penalty imposed in respect of charge No. 6 stands interfered with. However, the order of recovery of Rs. 15000/- that has been passed by the appellate authority is not interfered with. 23. In view of the above, the writ appeal partially succeeds. The impugned orders stand interfered with so far as the same relate to imposition of penalty separately in respect of charge No. 6. Consequently, the impugned judgment and order also stands interfered with partially so far as the same relates to upholding of multiple penalties on a single charge sheet. To make it clear the penalty imposed on the Petitioner/Appellant will be the one that was imposed in respect of charge No. 1 by the impugned order dated 20.8.1992. Further the order of recovery of Rs. 15000/- in respect of charge No. 6 is not interfered with. However, the separate penalty imposed in respect of charge No. 6 stands interfered with. 24. The writ appeal stands allowed to the extent indicated above. There shall be no order as to costs.