D.M. and Another vs Sewa Ram

Rakesh Tiwari and Sabhajeet Yadav, JJ.—This is State''s special appeal challenging the validity and correctness of judgment and order dated 6.01.2003 passed in Writ Petition No. 18387 of 2000 Sewa Ram v. District Magistrate, Etawah and Anr.

The Respondent was working as Collection Amin and his services have been terminated after holding inquiry. The order of termination was challenged by the employee in aforesaid Writ Petition No. 18387 of 2000. By the impugned order and judgment dated 6.1.2003 the writ petition was allowed quashing the orders dated 26.7.1999 passed by the Sub Divisional Magistrate, Chakar Nagar Etawah and the appellate order dated 6.3.2000 passed by the District Magistrate Etawah and granting all consequential benefits of service to the Petitioner therein. Five charges were levelled against him. The judgment has been assailed on the ground that while deciding the writ petition His Lordship has not considered the legal and factual aspect of the matter.

The first charge against the Respondent was that his recovery as Collection Amin was below the norms fixed by the Board of Revenue, U.P. The second charge was that the recovery made by the Respondent of Rs. 21,400/-was not deposited in the bank on 11.1.1999 and he has temporarily embezzled the amount. The third charge against the Respondent is that though he had received bonus amount of Rs. 2285/-, which was to be deposited by him in his provident fund account and in case he had not opened the provident fund account, he was to purchase National Saving Certificates of the half of the bonus amount, which he had also not done. The fourth charge against him was that in spite of application made by him he was not ready to open provident fund account. The last and fifth charge was that he and one Om Prakash Tomar were transferred on the basis of mutual transfer order. Sri Om Prakash Tomar did not give his joining at Tehsil Chakar Nagar yet concealing this fact a complaint was made by the reespondent employee on 15.1.1998 to the District Magistrate, Etawah that Ram Krishna Uttam, Sub Divisional Magistrate, Chakar Nagar was demanding Rs. 1000/- for relieving him.

Learned standing counsel has contended that it has not at all been considered that there are clear cut guidelines fixing norms and standard of collection by the Collection Amin. As per standard fixed by Board of Revenue in the guide lines it is incumbent upon the Collection Amins to collect target revenue amounting to at least Rs. 1 Lakh a year, which has not been achieved by the Appellant. It is also emphasised that the inquiry officer on the basis of evidence has found all the five charges proved against the Respondent.

From a perusal of the judgment we find that His Lordship has considered all evidence on record and appending circumstances into the charges levelled against the Respondent categorically dealing with each charge in detail and has found that in fact the Respondent employee was unnecessarily being punished in respect of the charges, which could not be sustained. His Lordship has also found that in fact the Respondent employee was being punished for the own mistakes of their officials of the Appellant State. The relevant-extract-of findings with regard to the charges are thus :

Five charges have been framed against the Petitioner, which have been found to be proved by the enquiry officer on the basis of which the Petitioner had been dismissed from service. The first charge against the Petitioner is that his recovery is below the norms fixed by the Board of Revenue U.P. The second charge is that recovery made by the Petitioner of Rs. 21,400/-was not deposited by him on 11.1.1999 and he had embezzled this amount. The Petitioner in his reply has taken a plea that there were six Collection Amins working in the Tahsil and none of the Amins had achieved the norm fixed by the Board of Revenue. The Petitioner''s recovery was the second highest recovery in Tahsil Chakar Nagar and disciplinary proceedings were initiated against the Petitioner illegally whose recovery was second highest but no disciplinary proceedings were initiated against the persons whose recovery was less than the Petitioner, who were at serial No. 3, 4, 5 and 6 in order of amount of recovery. Further the last person against whom disciplinary proceedings were taken had also been reinstated back in service. It has been alleged that the Petitioner''s total recovery between 15.11.1998 to 11.1.1999 was Rs. 26,466.55 whereas it ought to have been Rs. 1,86,667.00. It has nowhere been stated by the enquiry officer or by the punishing authority or by the Respondents in the counter affidavit that any Collection Amin was able to achieve the norm fixed by the Board of Revenue. The Petitioner had made recovery of Rs. 21,400.00 which he had deposited on 14.1.1999 as on 12.1.1999 there was strike in the bank and the following day was not working day and this amount was not taken into account while calculating the recovery made by the Petitioner and had it been taken into account then the total recovery of the Petitioner between 15.11.1998 to 11.1.1999 would have been Rs. 47.867.55 which is next to the recovery made by Sri K.K. Varma, Collection Amin. It has further been stated by the Petitioner that the recovery was low as the Tahsil Chakar Nagar is a Bihad'' (dacoity afffeted tahsil).

While recording findings on charges No. 1 and 2 the punishing authority had himself admitted that tahsil Chakar Nagar is a ''bihad'' tahsil, therefore, none of the Collection Amins posted in the tahsil could achieve the norm of recovery. The Petitioner had been singled out and the persons whose recovery was the lowest or at serial No. 3, 4, 5 and 6 in order of amount of recovery who were working along with the Petitioner no action had been taken against them. Therefore, considering the recovery of Rs. 21,400.00 made by the Petitioner, which was deposited by him on 14.1.1999, the total recovery of the Petitioner comes to Rs. 47,867.55. The amount of Rs. 21,400.00 was to be deposited by the Petitioner in State Bank Chakar Nagar, Dadaura and Labedi which were at far off distance and when the Petitioner reached the bank, the time for deposit was over on 11.1.1999 and since on 12.1.199 there was bank strike and on 13.1.1999 in the bank no transaction took place, therefore, the Petitioner deposited the said amount on 14.1.1999. A certificate to this effect had been filed by the Petitioner as Annexure RA 11 to the rejoinder affidavit which was issued by the bank, therefore, the amount was deposited by the Petitioner on 14.1.1999, though this amount was to be deposited by the Petitioner on 11.1.1999, the explanation given by the Petitioner was liable to be accepted, therefore, the amount of Rs. 21,400.00 is liable to be counted in the amount of total recovery made by the Petitioner and if this amount is added to the recovery made by the Petitioner during this period, the total recovery of the Petitioner between 15.11.1998 to 11.1.1999 would come to Rs. 47.867.55 which wold be the second highest recovery and much higher than the recovery made by other Collection Amins of the tahsil against whom no disciplinary proceedings had been taken by the Respondents. Therefore, the Petitioner could not be dismissed from service on the charge that his recovery was below the norm fixed by the Board of Revenue and the impugned dismissal order as such cannot be sustained on this ground.

The second charge that the Petitioner was required to deposit the amount of Rs. 21,400.00 on 11.1199 but he had deposited the same in the bank on 14.1.1999 had been satisfactorily explained and the Petitioner cannot be said to have committed any embezzlement. The Petitioner cannot be held guilty for charges No. 1 and 2.

The third charge against the Petitioner is that he received the bonus amount of Rs. 2285/-but he did not deposit the same in Provident Fund which was to be deposited by him in his Provident Fund Account and if the provident fund account was not opened then in that case he was required to purchase the National Saving Certificates of the half of the bonus amount. The fourth charge against the Petitioner is that he did not get opened the provident fund account and in spite of application being made by the Petitioner he was not ready to open that account. In this regard the Petitioner had made an application to the authority concerned for opening of the provident fund account but the same was not opened and the application of the Petitioner remained pending which was produced by him before the enquiry officer in evidence. The Petitioner had produced photo copy of the application made by him which was duly endorsed. This application has been discarded by the punishing authority on the assumption and supposition that the Petitioner himself had not pursued the matter. It was, however, for the Respondents to have taken action on the application of the Petitioner and got the provident fund account of the Petitioner opened and if the provident fund was not opened then in such a case the Petitioner could not be held guilty because for the lapses of the Respondents the Petitioner cannot be blamed. Moreover, this charge relates to the year 1996-97. The Petitioner was earlier issued the charge sheet on 14.3.1998 but no such charge was levelled against him. The third charge appears to have been framed against the Petitioner for the reasons best known to the punishing authority who, it appears, was bent upon to see that the Petitioner is dismissed from service. The charge No. 3 and 4 are not proved against the Petitioner.

The fifth charge has been framed against the Petitioner that he and Om Prakash Tomar were transferred on the basis of mutual transfer order. Om Prakash Tomar did not come to join at tahsil Chakar Nagar but this fact was concealed and complaint was made on 15.1.1998 to District Magistrate, Etawah that Ram Krishna Uttam, Sub Divisional Magistrate, Chakar Nagar was demanding Rs. 1000/-for reliving the Petitioner. It has been stated that Om Prakash Tomar was not willing to join at tahsil chakar Nagar because if was a ''bihad'' (dacoity affected tahsil) and he wanted to be relieved after the Petitioner was relieved so that he may not join at tahsil Chakar Nagar and the Petitioner may also be transferred from thasil Chakar Nagar. These facts have been imagined by the punishing authority though the material on record speaks otherwise. The record establishes that on 18.11.1998 the mutual transfer of Petitioner and Om Prakash Tomar was allowed by the Prabhari Adhikari but Sri Ram Krishna Uttam the Sub Divisional Magistrate was not relieving the Petitioner. Therefore, the District Magistrate, Etawah also passed an order on 18.2.1999 for reliving Om Prakash Tomar from tahsil Etawah and after his reliving the Petitioner was to be relieved from tahsil Chakar Nagar. Om Prakash Tomar was relieved from tahsil Etawah on 20.2.1999 but even thereafter the Petitioner was not relieved. All these facts establish that there was no conspiracy between the Petitioner and Om Prakash Tomar as assumed by the punishing authority. On the other hand, they were acting under the orders passed by the Prabhari Adhikari, Additional District Magistrate and District Magistrate, Etawah. As a matter of fact, Sri Ram Krishna Uttam, Sub Divisional Magistrate, Chakar Nagar was himself guilty of insubordination and was not following the orders passed by his superior officers namely the Additional District Magistrate and the District Magistrate, therefore, from the record the fifth charge also does not stand proved against the Petitioner.

Ultimately His Lordship by the impugned judgment has held that none of charges levelled against the Respondent could be said to have been proved nor on the basis of these charges the Respondent could be dismissed. Accordingly the employee was directed to be reinstated in service with all consequential benefits.

After hearing the counsel for the parties and upon perusal of the judgment and records we respectfully concur with the reasoning given in the impugned judgment. We find that the charges have not been proved in the inquiry rather the Respondent has been punished for no fault of his and the punishment awarded to the Respondent being highly disproportionate has rightly been set aside by a well considered judgment. There is no merit in the appeal and it is accordingly dismissed. No order as to costs.