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2017 DIGILAW 1106 (ALL)

UNION OF INDIA v. MADHUP KUMAR

2017-04-26

K.J.THAKER, SUDHIR AGARWAL

body2017
JUDGMENT By the Court.—Heard Sri Sharad Kumar Srivastava, learned counsel for petitioners and Sri Rajeev Singh, counsel for respondent. 2. This writ petition under Article 226 of Constitution of India has been filed assailing judgment and order dated 16.4.2009 passed by Central Administrative Tribunal, Lucknow Bench, Lucknow (hereinafter referred to as “Tribunal”) allowing Original Application No. 548 of 2001 and setting aside punishment order, and directing petitioners to reinstate applicant-respondent in service from the date of removal with all consequential benefits. 3. Learned counsel for petitioners submitted that Tribunal erred in law in holding that order dated 26/27.4.2001 is illegal having been passed beyond the statutory period of six months by an authority who is not competent for the same. He further submits that guilt and charge of applicant-respondent has been proved, still Tribunal has interfered with the punishment order on the ground that it is disproportionately harsh and excessive, though it was a case of temporary embezzlement and therefore, punishment was adequate. 4. We find substance in the submission. 5. So far as first submission is concerned, it involves interpretation of first proviso of Rule 16 of Extra Departmental (Conduct & Service) Rules, 1964 (hereinafter referred to as “Rules 1964”) which reads as under : “Provided that no such case shall be reopened under this rule after the expiry of 6 months from the date of the order to be revised except by the Central Government or by the Head of the Circle or by the Post-Master-General (Region) and also before the expiry of the time limit of three months prescribed for preferring an appeal.” 6. Tribunal has said that order passed by disciplinary authority is dated 31.8.2000 while revisional authority passed order on 26/27.4.2001 which is beyond six months limit. It has discarded the defence taken on behalf of department that show-cause notice for exercising revisional power was issued on 2.2.2001 which was well within six months limit. Therefore, it cannot be said that revisional order is barred by time prescribed under first proviso of Rule 16 of Rules 1964. In our view, approach of Tribunal in reading Rule 16, first proviso is not correct. The first proviso does not provide six months period of limitation for final order to be passed by revisional authority but it restricts period of six months for the purpose of reopening of a case. In our view, approach of Tribunal in reading Rule 16, first proviso is not correct. The first proviso does not provide six months period of limitation for final order to be passed by revisional authority but it restricts period of six months for the purpose of reopening of a case. When show-cause notice was issued by revisional authority on 2.2.2001, it is nothing but a written document showing reopening of the case by revisional authority and hence was within the limitation under first proviso to Rule 16. The term “reopen” should not have been equated with final order passed by revisional authority but it refers to initiation of proceedings of revision by revisional authority which in the present case is reflected by notice dated 2.2.2001. Therefore, findings recorded by Tribunal in this regard in Para 6.1 of the judgment are reversed. 7. Then coming to second question with regard to disproportionate punishment, we find that Tribunal has got impressed with quantum of amount found deficit in shortage by authorities concerned. Besides, fact that in a matter of departmental proceedings against a person holding office of trust, it is not the quantum but attitude and aptitude matters, we must also keep in mind that charges pertain to period of 1998. Moreover, deficiency was not one time incident but recurring one. 8. In cases where employees who are engaged in the duties involving Finance or Revenue, Courts have held that charge of misappropriation or attempt of misappropriation of funds of employer is a serious charge and no generosity should be shown in such matters. 9. In Divisional Controller, N.E.K.R.T.C. v. H. Amaresh, 2006 SCC 187 , dealing with the question of quantum of punishment, Court held, “mis-appropriation of the funds by the delinquent employee was only Rs. 360.95 but it is not question of quantum of money misappropriated by delinquent employee but it is a question of loss of confidence and the basic aptitude of lack of integrity on the part of such person. Court said “This Court in a catena of judgments held that the loss of confidence as the primary factor and not the amount of money mis-appropriated and that the sympathy or generosity cannot be a factor which is impermissible in law. Court said “This Court in a catena of judgments held that the loss of confidence as the primary factor and not the amount of money mis-appropriated and that the sympathy or generosity cannot be a factor which is impermissible in law. When an employee is found guilty of pilferage or of mis-appropriating a Corporation’s funds, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefore with the quantum of punishment.” (emphasis added) 10. In Divisional Controller, KSRTC (NWKRTC) v. A.T. Mane, (2005) 3 SCC 254 , the amount found to be in possession of unaccounted money was only Rs. 93/-, but dealing with the question of quantum of punishment, Court said; “............ question of quantum of punishment, one should bear in mind the fact that it is not the amount of money misappropriated that becomes a primary factor for awarding punishment, on the contrary, it is the loss of confidence which is the primary factor to be taken into consideration. In our opinion, when a person is found guilty of misappropriating corporation’s fund, there is nothing wrong in the corporation losing confidence or faith in such a person and awarding a punishment of dismissal.” (emphasis added) 11. In Niranjan Hemchandra Sashittal and another v. State of Maharashtra, (2013) 4 SCC 642 , Court in para 25 of judgment said; “In the present day scenario, corruption has been treated to have the potentiality of corroding the marrows of the economy. There are cases where the amount is small and in certain cases, it is extremely high. The gravity of the offence in such a case, is not to be adjudged on the bedrock of the quantum of bribe. An attitude to abuse the official position to extend favour in lieu of benefit is a crime against the collective and an anathema to the basic tenet of democracy, for it erodes the faith of the people in the system. It creates an incurable concavity in the Rule of Law..........” (emphasis added) 12. In Rajasthan State TPT Corporation and another v. Bajrang Lal, (2014) 4 SCC 693 , Court said; “in cases involving corruption-there cannot be any other punishment than dismissal. It creates an incurable concavity in the Rule of Law..........” (emphasis added) 12. In Rajasthan State TPT Corporation and another v. Bajrang Lal, (2014) 4 SCC 693 , Court said; “in cases involving corruption-there cannot be any other punishment than dismissal. Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant.” (emphasis added) 13. We do not propose to multiply authorities on this aspect and suffice it to mention that dishonesty, lack of integrity on the part of an official of Corporation, going to the extent of causing loss to Corporation, of which the official is holding position in trust, is a very serious matter. It is the aptitude of a person which leans towards dishonesty and corruption or bad conduct, that needs punished. The circumstances or quantum of loss or amount of misappropriation or other things cannot be considered as a justification for such misconduct on the part of official concerned, so as to justify a lenient view on the issue of punishment. 14. There is no question of leniency or sympathy. In fact any indulgence in such matter will make even Court a party to such dishonest action, which has to be avoided, prevented and is totally uncalled for. Court cannot be a party to a misdeed of a person. On the contrary, once a person had indulged in misconduct, shown lack of integrity or honesty etc., adequate preventive punishment, which may be a lesson to others also, is need of the day. 15. In the present case, looking to seriousness of charge which has been found proved against petitioner, we have no hesitation in holding that punishment of removal is neither excessive, nor unjust, nor otherwise arbitrary justifying any interference. 16. In view of above, writ petition is allowed. Impugned order dated 16.4.2009 is hereby set aside and Original Application No. 548 of 2001 is hereby dismissed.