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2012 DIGILAW 1063 (PNJ)

Mohan Singh v. State of Punjab

2012-08-09

RAJESH BINDAL

body2012
JUDGMENT Mr. Rajesh Bindal, J.: - The petitioner, whose services were terminated vide order dated 10.12.2009, has approached this court. 2. Briefly, the facts are that the petitioner joined as Junior Auditor in the office of Examiner, Local Fund (Accounts), Punjab on 25.3.1981. He was partner in the firm, titled as M/s Sidhu Khalsa Rice and General Mills Chabhal, District Amritsar. For the crop year 1995-96, some paddy was stored by Markfed in the aforesaid mill for the purpose of custom milling. As certain stocks were found short. FIR was lodged against the firm and its partners. Vide judgment dated 13.12.2005, the petitioner, being partner in the aforesaid firm, was convicted for embezzlement and sentenced to undergo imprisonment for a period of one year with fine. The sentence was upheld in appeal vide judgment dated 16.7.2009. On 13.8.2009, the petitioner was placed under suspension w.e.f. 16.7.2009. Against the judgment of the lower appellate court, the petitioner filed Criminal Revision No. 1853 of 2009 before this court, which was disposed of vide order dated 19.11.2009 with the modification that sentence was reduced from one year to six months imprisonment, whereas the fine was enhanced to Rs.35,000/-. Immediately thereafter, vide order dated 10.12.2009, the services of the petitioner were dispensed with. It is the aforesaid order, which is impugned before this court. 3. Learned counsel for the petitioner submitted that merely on account of conviction in a criminal case, the petitioner could not have been dismissed from service. The competent authority did not apply its mind to the fact as to whether the act of the petitioner amounted to moral turpitude. Entire conduct of an employee was required to be considered before taking such an action. The petitioner is 100% handicapped. In fact, he was a sleeping partner in the firm and was not involved in its day to day functioning. He being the sleeping partner could not have been made liable for the acts and conduct of other partners as he was not involved in day to day affairs of the firm. The amount of loss caused to Markfed could be made good. 4. After hearing learned counsel for the petitioner, I do not find any merit in the present petition. The amount of loss caused to Markfed could be made good. 4. After hearing learned counsel for the petitioner, I do not find any merit in the present petition. Firstly, the petition deserves to be dismissed on account of delay and laches for the reason that the impugned order is dated 10.12.2009 and the petition has been filed in this court after more than 2-1/2 years. 5. Even on merits, this court does not find any reason to interfere with the impugned order. The petitioner joined service in the year 1981. It is not disclosed by the petitioner as to when he joined the aforesaid firm as a partner. It was in violation of the conduct rules for the employees to have indulged in business activities during the period they are in government service. A perusal of the copy of power of attorney (Annexure P-2), attached with the petition, shows that on 22.11.1995, the petitioner being one of the partners, had given power of attorney to one Gulwinder Singh son of S. Gulzar Singh to deal with Markfed. Meaning thereby the petitioner was very well aware of the fact that he was continuing as partner with the firm. FIR was registered against the firm and its partners bearing No. 159 dated 30.11.1999, under Sections 406, 420 and 120-B IPC on the complaint of Markfed. It was with the allegation that the firm entered into an agreement for custom milling with Markfed on 25.10.1995. In terms thereof, pady was stored in the mill for custom milling, rice produced out of which was to be delivered to Food Corporation of India in Markfed’s account. The firm having failed to adhere to the time schedule for delivery of rice, physical verification of the premises of the firm was carried out and it was noticed that 7,372 bags weighing 4,791.80 quintals of paddy was short, the value of which at that time was Rs.34,96,960/-. Despite undertaking given by the authorised person on behalf of the firm on 15.8.1998, the value of the paddy found short was not deposited. After trial, all the partners of the firm including the petitioner were convicted by Judicial Magistrate Ist Class, Tarn Taran vide judgment dated 13.12.2005. Despite undertaking given by the authorised person on behalf of the firm on 15.8.1998, the value of the paddy found short was not deposited. After trial, all the partners of the firm including the petitioner were convicted by Judicial Magistrate Ist Class, Tarn Taran vide judgment dated 13.12.2005. The petitioner was sentenced to undergo imprisonment for a period of one year under Section 420 IPC with fine of Rs.1,000/- and imprisonment for a period of six months with fine of Rs.200/- under Section 120-B IPC. In appeal, the judgment of the trial court was upheld by Additional Sessions Judge, Fast Track (Adhoc), Tarn Taran on 16.7.2009. The petitioner filed Criminal Revision No. 1853 of 2009 before this court. The same was disposed of on 19.11.2009 while upholding the conviction of the petitioner, however, the sentence awarded to him was reduced from one year to six months imprisonment, whereas the fine imposed was enhanced to Rs.35,000/-. In these circumstances, to claim that the petitioner was totally innocent, the competent authority was required to apply its mind to see that act and conduct of the petitioner amounted to moral turpitude, which could entail his dismissal from service, is totally misconceived. 6. It is not in dispute that the petitioner joined partnership firm as a partner while he was still in government service without disclosing the same to his employer. Not only this, he had even concealed from his employer about his involvement in the criminal case being partner of the firm on account of misappropriation of 7,372 bags weighing 4,791.80 quintals of paddy worth Rs.34,96,960/-. When the FIR was registered against him in the aforesaid FIR, the petitioner had even sought anticipatory bail. The petitioner even withheld the information about his conviction by the trial court, as even thereafter no action was taken against him, though judgment of the trial court is dated 13.12.2005. It was only after his appeal was dismissed on 16.7.2009 by Additional Sessions Judge, Tarn Taran that the petitioner was placed under suspension vide order dated 13.8.2009 w.e.f. 16.7.2009. The petitioner in the present case must have been taken into custody on 16.7.2009 when his appeal was dismissed, but still the order to place him under suspension was passed on 13.8.2009 w.e.f. 16.7.2009, the date on which the appeal was dismissed and the petitioner was taken into custody. The petitioner in the present case must have been taken into custody on 16.7.2009 when his appeal was dismissed, but still the order to place him under suspension was passed on 13.8.2009 w.e.f. 16.7.2009, the date on which the appeal was dismissed and the petitioner was taken into custody. In fact, the petitioner was deemed to have been suspended after more than 48 hours in custody. 7. Considering the aforesaid conduct of the petitioner, where at every stage he had been able to play hide and seek with the employer and was one of the partners of the firm even during his employment with the State, which indulged in embezzlement of 7,372 bags weighing 4,791.80 quintals of paddy worth Rs.34,96,960/-, I do not find that the order of dismissal suffers from any illegality. 8. For the reasons mentioned above, the present petition is dismissed. 9. Still further, the petitioner in the present case has been dismissed from service after enquiry. In terms of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 an order of dismissal is appealable. The petitioner has mentioned in his petition that there is no alternative remedy available to him. Apparently, the statement is misleading. To avoid any such occasion in future and also with a view to guide the employees regarding their statutory right to file appeal or avail of any other remedy in accordance with the applicable Rules/Regulations, it would be appropriate if authority, which passes the order of punishment or any other order, specifically mentions therein on the top or in the end that an appeal against the order is maintainable to the designated authority and even the period for availing such a remedy. 10. Copy of the order be sent to Chief Secretary of the States of Punjab and Haryana and Home Secretary, Union Territory, Chandigarh for issuing necessary instructions to all concerned for strict compliance.