H. K. Lakshminarayanappa v. University of Agricultural Sciences GKVK Campus Bangalore
2015-03-06
K.L.MANJUNATH, P.B.BAJANTHRI
body2015
DigiLaw.ai
Judgment The writ petitioner is the appellant before us. This appeal is filed against order dated 24.06.2011 whereby the learned Single Judge has dismissed the appellant’s writ petition No.6291/2006. 2. The appellant was an employee of the respondent-University and was working as a Senior Assistant in the Estate Office at the GKVK Campus, Bangalore. He was assigned with the work of cash transactions including the maintenance of cash book. During the month of July 2002, the respondent noticed that there was misappropriation of University funds and it was brought to the attention of the University by Note dated 5.7.2002. Based on the aforesaid Note, the appellant was kept under suspension on 23.7.2002. Thereafter, internal special audit committee came to be constituted to find out the actual amount of misappropriation of the University fund. The internal special audit committee verified the books of accounts for the period commencing from 1.6.1995 to 11.6.2002 and submitted a report. In the said report, it was made clear that a sum of Rs.5,33,050/- which included a sum of Rs.4,55,000/- and interest thereon was found to be misappropriated in the cash section. In pursuance of the internal special audit committee report, the respondent-University framed articles of charges among others the appellant on 11.11.2002. The appellant did not furnish his explanation to the charge memo despite giving sufficient opportunity whereas he had requested to furnish certain documents. It is stated that required documents were furnished to the petitioner. 3. The University-respondent proceeded with the enquiry by appointing a Inquiry Officer to conduct enquiry into the case of misappropriation of University funds to the tune of Rs.5,33,050/- alleged to have been committed by the appellant on 31.3.2003. The Inquiry Officer enquired into the case of the appellant, furnished its report stating that a sum of Rs.5,33,050/- is liable to be recovered from the appellant. The said report was placed before the Board and thereafter a show-cause notice was issued by furnishing copy of the enquiry report seeking explanation of the appellant. In the show-cause notice it was also indicated that why the appellant should not be dismissed from service and to recover the misappropriate funds of the University along with interest. 4. On 10.12.2004 the appellant submitted his explanation to the show-cause notice so also on the Enquiry Officer’s report. The appellant virtually admitted the guilt in his reply to the show-cause notice.
4. On 10.12.2004 the appellant submitted his explanation to the show-cause notice so also on the Enquiry Officer’s report. The appellant virtually admitted the guilt in his reply to the show-cause notice. The respondent-University taking into consideration the appellant’s reply in particularly admission of charge imposed penalty of dismissal from service on 31.3.2005 and further it was ordered that the misappropriated fund of Rs.5,33,050/- i.e. principle amount of Rs.4,55,201/- interest amount of Rs.77,849/- shall be recovered from the appellant with upto date interest. The petitioner aggrieved by the order of dismissal preferred writ petition before this Hon’ble Court which was numbered as W.P. No. 6291/2006. 5. On 24.6.2011, the learned Single Judge dismissed the writ petition No.6291/2006 while recording the confession statement/admission of charge made by the appellant in his reply to the show-cause notice. The appellant aggrieved by the order of the learned Single Judge dated 24.6.2011 passed in W.P.No.6291/2006 has preferred this appeal. 6. The appellant contended that a joint enquiry was ordered against appellant and others. However, conducting of enquiry against appellant only and imposing the penalty of dismissal is improper and inequitable. The respondent-University submitted that in view of the confession/admission made by the appellant, enquiry against rest of the officers who were also subjected to disciplinary proceedings was dropped. 7. The appellant further submits that he was not the drawing officer and it was the drawing Officer who was responsible for unaccounted funds and as such, he is not responsible for misappropriation of University funds. It was also contended that he was being made scape goat in the enquiry. The University counsel submitted that the aforesaid contentions of the appellant are not available in view of the confession statement made by the appellant in reply to the second show-cause notice. An extract of the confession made by the appellant is reproduced herein: “This confession is not at the behest of anybody or under any duress. I have realised that I should not have misappropriated the amount cited in the Charge. It is really a misconduct as termed under the show-cause notice. There were some compelling reasons that enforced me to utilise the said amount by me. Of course, no such plea could be acceptable in the eye of law. When I was actually handling the matters of finance and cash. This I should not have misutilised.
It is really a misconduct as termed under the show-cause notice. There were some compelling reasons that enforced me to utilise the said amount by me. Of course, no such plea could be acceptable in the eye of law. When I was actually handling the matters of finance and cash. This I should not have misutilised. I should not have deceived my authority – The University. Therefore, I hereby confess in regard to the charges through this submission unequivocally. I am prepared to accept any of the penalty from the disciplinary authority for my said misconduct. But I appeal in the following few lines for a lesser penalty than the compulsory retirement/Removal/dismissal.” 8. The learned Single Judge has taken note of the admission of the appellant about his guilt in respect of the charge framed against him and held that the appellant has not made out case against the order of dismissal dated 31.3.2005 and rejected the writ petition. 9. The learned Single Judge rightly rejected the writ petition in view of the clear admission of guilt by the appellant. It is relevant to quote meaning of confession/admission: “Confession” is based on the maxim “habemus optimum testem, confitentem reum” which means that confession/admission of an delinquent is the best evidence against him. The rationale behind this principle is that an ordinary, normal sane person would not make a statement which would incriminate him unless urged by the promptings of truth and conscience. When there is admission which constitutes the delinquency then there is no necessity for further proof and a decision can be taken by the competent authority on admission. “Admission by the charged employee: “Admission” is the nod of the charged employee to any particular fact mentioned in the charge sheet. If it is accompanied by admission of guilt also, it becomes a ‘confession’. An apology presupposes that the accused admits the guilt and begs to be pardoned. Admission/apology to have the effect of dispensing with inquiry must be clear, concise and unconditional and made after issue of the charge memo/charge sheet. An apology loses its grace if it is not tendered in the beginning but only when the charge is proved and punishment is going to be imposed.” “Apology tendered at the later stage when things turn against him it shorn of all grace and is an act of cringing coward.
An apology loses its grace if it is not tendered in the beginning but only when the charge is proved and punishment is going to be imposed.” “Apology tendered at the later stage when things turn against him it shorn of all grace and is an act of cringing coward. Apology is an act of contrition, the manly consciousness of a wrong done and a desire to make reparation. It should be the outcome of a real feeling of remorse. Hence, if it is not offered in the earliest and unreservedly, it is shorn of penitence. An apology tendered when the punishment is going to be imposed ceases to be an apology but an act of cringing coward.” 10. In view of the above facts and circumstances, there is no error in the order dated 24.6.2011 passed in W.P. No. 6291/2006. We find absolutely no reason to interfere with well considered order of the learned Single Judge. The learned Single Judge was absolutely correct on factual aspects of the matter in passing the aforesaid order. 11. For the reasons mentioned above, we find no merit in this appeal. Accordingly, the same is dismissed without any order as to cost.