Ajay Kumar vs State of Uttarakhand & Others

SHARAD KUMAR SHARMA, J.

K.M. JOSEPH, C.J. (ORAL)

Petitioner impugns the order of the Uttarakhand Public Services Tribunal, by which the Claim Petition filed by him was rejected. He further seeks

to quash orders dated 21.09.2010 and 08.04.2011 passed by the Disciplinary Authority and the Appellate Authority respectively. He also seeks

consequential benefits.

The petitioner was proceeded against by imposition of minor penalty. After considering the explanation given by him, the Authority imposed penalty

of censure and also of withdrawal of one increment. The appeal carried by the petitioner came to be rejected vide order dated 08.04.2011. He

approached the Uttarakhand Public Services Tribunal by filing Claim Petition No. 40/SB/2014. It is the same Claim Petition, which has been rejected

by order dated 20.11.2015. Hence, these orders are put in issue in this writ petition.

We heard Mr. Anil Kumar Joshi, learned counsel on behalf of the petitioner and Mr. Anil Kumar Bisht, learned Standing Counsel on behalf of the

State of Uttarakhand/respondents.

The Tribunal has found that in judicial review, there is no scope for interference. This is a case where minor penalty has been imposed. There can

be no doubt that the procedure for imposition of minor penalty has been followed. In that, the petitioner has been issued a show-cause. In fact, he was

given an opportunity for giving explanation, which he did. It is after considering the same that the penalty has been imposed. Be it noted that the

penalty consists of censure and also withdrawal of one increment without cumulative effect.

Mr. Anil Kumar Joshi, learned counsel for the petitioner would submit that the petitioner has been wrongly roped in. In fact, he has a case that the

petitioner was in charge of the Mobile Unit at the relevant time. It is submitted that there was another person, who was having the charge of the

Office. There is also a case that Handwriting Expert was not called in to establish that the overwriting, which is the subject matter of the present

controversy, belongs to the petitioner. It is the case of the petitioner that without there being any material against him, penalty has been imposed on

him.

Per contra, Mr. Anil Kumar Bisht, learned Standing Counsel would support the order of the Uttarakhand Public Services Tribunal. It is necessary to

notice the following facts, which led to the proceedings against the petitioner:

In a penalty proceeding under the Central Sales Tax Act, a penalty was imposed for bringing in goods into the State of Uttarakhand by the Assessee

without intimation to the department. The penalty was imposed to the tune of Rs. 4,55,689/-. An appeal was carried by the Assessee before the

Appellate Authority. The Assessee produced the receipt to show that he had intimated about more goods being brought into the State of Uttarakhand

and, therefore, accepting the said version, the Appellate Authority reduced the amount of penalty considerably, namely, from Rs. 4,55,689/- to Rs.

43,716/-. This led to a preliminary enquiry being conducted. It is on the basis of the findings in the preliminary enquiry that the proceedings were taken

to impose the minor penalty noting that the petitioner was the person, who was in charge of the concerned section.

In the show-cause, which is issued to the petitioner, no doubt, it is, INTER ALIA, alleged that the overwriting was in the petitioner’s handwriting.

It is, however, more importantly alleged that the petitioner was in charge of the said post. Petitioner gave his reply; that was considered and the

penalty was imposed.

Learned counsel for the petitioner also has a case that for the period 03.01.2006 till 17.07.2006, the petitioner was posted with the Mobile Unit and

only started discharging duties of the seat from 17.07.2006, and thus did not do any wrong. Petitioner also has a case that the documents were all tied

up in a cloth; there was no almirah; petitioner used to go on leave and in the circumstances, the blame cannot be attributed at the doorstep of the

petitioner. It is necessary to notice the actual finding recorded by the Original Authority. From the translation of the same, we may refer to the

following:

“In compliance of the above, Sri Ajay Kumar, Junior Clerk, through letter No. 43 dated 6.7.2010 of the Assistant Commissioner (In-charge),

Commercial Tax, Railway Outpost, Haridwar, submitted his clarification wherein it was apprised by Mr. Ajay Kumar, Junior Clerk, that ‘the line of

handwriting which is written on the aforesaid receipt, is not his handwriting and nor it has been written by him and nor I was posted at that time on the

concerned counter. This is just a conspiracy to implicate me, in the aforesaid matter, I hereby state on oath that I am totally innocent. If this work has

been done after his posting, then it must have been done before the office hours viz. 10:00 hours of the morning or after 5:00 hours of the evening in

his absence or it could have been on the days of his leave. I was also stated by him in his explanation that it is to be bring into the knowledge that at

that time, no lock was applied in my room, which was resisted by me and the guard so posted was also asked. Al the documents were kept by him in a

proper manner after tying in a cloth but the documents were open by the other employees, about which the complaint was also made by me to the

senior assistant posted in the office and from time to time, demand of an Almirah was also made, at the same time, Senior Clerk would receipt Form-

16 from the Aiding Centres and due to the records of Form-16, there used to be the regular visits of other employees and the advocates;’ there

being a small room in the office to keep the documents, no space had been left; it was also mentioned in the explanation that he does not know

anything about the overwriting made on Receipt No. 336018 dated 31.1.2006; I am totally innocent in the aforesaid matter and the overwriting made

on the said receipt is not of mine. As and when such a sensitive work was done and by whom, I am not aware. Hence, the prayer has been made to

not consider me as a guilty in the aforesaid matter.’

From the office of assistant Commissioner, Commercial tax Division ¼, the confidential record and R-29 register relating to the said period was

called, which were perused. On making perusal of the confidential record, it was found that in Receipt No. 336018 dated 31.1.2006, there is neither

any application to increase the articles in Form-C is available on record and nor any consequential order is mentioned on the aforesaid application. On

making perusal of Register-29 of the aforesaid period, it was found that in Receipt No. 336018 dated 31.1.2006, by the aforesaid Firm, Proforma-III

and application to increase the articles is clearly mentioned but the impression of carbon ‘application for increase of articles’ appears to be

clearly different from other words and handwriting too is different. Carbon impression of ‘application for increasing the article’s in the aforesaid

page and on the same receipt, on perusing impression of Pro-forma-III, prima facie, appears to have been entered later on by applying another carbon.

Although, the application letter to increase the articles could have been added by Mr. Ajay Kumar, Junior Assistant himself, it does not appear from

the carbon copy, but in the said receipt of R-29, adding application to increase the articles becomes evident after making perusal of the same. Sri

Nautiyal, Dy. Commissioner (K.N.)-Second Commecial Tax and Additional In-charge Assitant Commissioner, Commercial tAx Division-1, Haridwar,

in their enquiry report also, have mentioned the fact of adding the aforesaid articles as well as having the consent of Mr. Ajay Kumar for the same.

Thereby also, the involvement of Mr. Ajay Kumar appears in the matter and from this, it is also evident that there has been the consent of Mr. Ajay

Kumar in adding in the receipt of the office copy of the words ‘application for adding the articles’. Even if there was no consent of Mr. Ajay

Kumar, then also, Mr. Ajay Kumar is completely guilty of adding the aforesaid application to increase the articles on the office copy. Since, the

aforesaid manipulation has taken place while Mr. Ajay Kumar being posted as Dispatch Clerk of Division-1, Haridwar, it was the responsibility of Mr.

Ajay Kumar to maintain the records whtever were in his charge that nobody, with malice, may not misuse them. Just by mentioning by Mr. Ajay

Kumar that the place where his records were kept, no lock was applied in that room and nor he was having any Almirah, but the effort, to put a lock

in the room and to obtain an Almirah, so mentioned in his explanation, in respect thereof, no proof has been annexed with the explanation. Here, it also

needs to be mentioned that in all the offices situated in Haridwar/ Department, generally the records have been kept in the same manner. But in the

previous years, no such manipulation matter in any of the offices located in Haridwar has come into knowledge. From the above, it is event that in the

receipt issued earlier, the adding of words in the matter for ‘application for increasing the articles’ (due to which the revenue loss is proposed),

the fault/ negligence of Mr. Ajay Kumar, Junior Clerk, is proved, whereform, it is proved that Sri Ajay Kumar, certainly being the government servant,

did not discharge his duties in a proper manner, as a result whereof, Mr. Ajay Kumar is hereby reprimanded and his one annual increment is stopped

in a temporary manner.â€​

A perusal of the same would reveal that the actual finding of the Authority is that involvement of the petitioner appears in the matter and that there

has been consent on the part of the petitioner in adding in the receipt of the office copy the words “application for adding the articlesâ€. Still

further, it is found that even if there is no consent of the petitioner, he is completely guilty of adding the aforesaid copy to increase the articles on the

office copy. It is further found that since, the manipulation has taken place while the petitioner was working as Dispatch Clerk, it was his responsibility

to maintain the records whatever were there in his charge and that nobody with malice may misuse them. It is categorically found that in all the

offices situated in the Haridwar/Department, generally the records are kept in the same manner; but in previous years, no such manipulation matter in

any of the offices located in Haridwar has come into knowledge. The fault/negligence of the petitioner is proved that he did not discharge his duties

being a Government servant in a proper manner, and the petitioner was being reprimanded and his one annual increment is stopped in a temporary

manner.

In the order of the Appellate Authority, also, we find that, after referring to the representation, it is stated as follows:

“I have considered the order passed by the Divisional Officer, Joint Commissioner (In charge) as also the representation produced by the

employee. This is an undisputed fact that the Receipt No. 336018 dated 31.1.2006 which has been issued for Pro-forma-III, therein, the words

‘application for increasing the articles’ has been added later on due to which the Trader has been benefited at the first appellate state and the

Department has suffered the revenue loss. The dated (30.9.2008) on which the punishment order was passed by the K.N. Officer, on that day, the

‘application for increasing the article’ was not available on the record and considering the same only, the Tax Assessing Officer had imposed

the penalty on the Trader. First Appellate decision has been passed on 15.5.2009. Hence, it can be deemed that the entry of ‘application for

increasing the articles’ has been made in the receipt in between passing of punishment order and hearing of first appeal, due ot which Mr. Ajay

Kumar, Junior Clerk, who was posted on the Dispatch Counter, is guilty. Sri Ajay Kumar along with his representation has also produced an affidavit

dated 20.09.2010 wherein he has deposed on oath that the aforesaid receipt is not in his handwriting and not it is in his knowledge. It was also stated

by him that during his leave period, other employees kept on working on the Dispatch Counter and due to there being no lock or non-providing any

Almirah in the concerned Dispatch Counter, the documents were kept in the open. In such a state, any person /employee can do such an act, but by

which person /employee can do such an act, he did not state his name and address. In his representation, he has also requested to get done an enquiry

from the Handwriting Expert.

After a careful consideration on the aforesaid facts, I have come to the conclusion that in the said matter, the revenue loss has occurred. So far as the

determination of fault of any employee is concerned, even there being handwriting of anyone else (whose name Mr. Ajay Kumar could not state), the

responsibility of the concerned records being connected with the dispatch counter, is of Mr. Ajay Kumar, Junior Assistant only and he is guilty for the

same. Against the order passed by the Joint Commissioner (In-charge), Haridwar Region, Haridwar bearing No.1709/Dt.21.9.2010, the representation

given by Mr. Ajay Kumar, Junior Clerk is hereby rejected.â€​

So the matter has been considered by the Appellate Authority. It is found that the words “application for increasing the articles†were not

available on record on 30.09.2008. It is also stated in the order, as we have noticed, that during his leave period, other employees kept on working on

the Dispatch Counter and due to there being no lock or non-providing any Almirah in the concerned Dispatch Counter, the documents were kept in the

open. But the finding is that irrespective of the handwriting being of anyone else’s, the responsibility of the concerned records being connected

with the dispatch counter was of the petitioner and he has been guilty of the same.

Having regard to the nature of the allegations against the petitioner and having regard to the facts, which have emerged, we do not see any ground

at all to interfere in the matter. This is not a merit review. In fact, this is a judicial review of the order passed by the Tribunal in judicial review. The

Tribunal itself has found that the Judicial Review is limited. Procedurally, there is no flaw as such. There is no case that the punishment imposed is

disproportionate. As we have noted, it is not actually found that it is in the petitioner’s handwriting that the overwriting has been carried out; but it

is found that the records were in the custody of the petitioner and it was his duty to keep them in such a way that they are not in any way tampered

with. Therefore, we cannot treat this as a case, which merits interference in judicial review.

The argument based on the petitioner being in the Mobile Unit also does not appeal to us as the period when the overwriting was done is not to be

confined to the period when he was allegedly in the Mobile Unit. It is to be noted in this regard that it is till 11.07.2006 that he allegedly was with the

Mobile Unit. The Assessment Order is of the year 2007-08. At the time when the Assessment Order was passed, this claim for giving of intimation

regarding more goods being brought was not there. It is only at the appellate stage that this plea was set up by the Assessee and he produced the

receipt. Therefore, in such circumstances, the conclusion arrived at by the authorities, both Original Authority and the Appellate Authority, would

appear to be consistent with the clear probability that this is done subsequent to the order of penalty. Certainly, at that stage, the petitioner has no case

that he was not in charge of the documents.

It is also relevant to notice that though a case is sought to be set up by Mr. Anil Kumar Joshi, learned counsel for the petitioner that he was not in

charge exclusively, a perusal of the Claim Petition would show that he has not set up any such case before the Tribunal that he was not in charge of

the documents. There is a specific finding in the impugned order of the Appellate Authority that he was in charge. That should have been challenged

specifically if that is not correct. The fact that it is not challenged goes a long way to assure us that the finding of the Appellate Authority was correct

and is not liable to be interfered with. Having regard also to the nature of the penalty, which is imposed, we see no ground to interfere with the order.

The writ petition is dismissed. No order as to cost.