Dombeswar Dutta vs Assam Agricultural University and Others

D. Biswas, J.—The Petitioner while working as Accounts Officer in the Assam Agricultural University, Jorhat, was indicated of the following charges:

l. That while you were holding the post of the Accounts officer of the Directorate of Research, AAU, Jorhat, with the duties and responsibilities of the Drawing and Disbursing Officer, you have your own action and gross negligence of duties contributed to the misappropriation of a sum of Rs. 87,420.19 (Rupees eighty seven thousand four hundred twenty and paise nineteen only) being sale proceeds of farm produces etc. You are, therefore, charged with misconduct for gross negligence of duties contributed to the misappropriation of University money.

That, you have deliberately and for your dishonest notice allowed die Cashier to keep hudge cash balance for months together without depositing die same into die Bank. Your are, therefore charged with misconduct for breach of trust and gross dereliction of duties resulting in considerable loss to die University.

That as a drawing and Disbursing officer you are required to verify each entry in the cash Book daily and after the cash book is closed and balanced each day, you are required to put your dated initial in the cash Bode against the closing balance; but you have deliberately and for your dishonest motive refrained yourself from signing the Cash Book daily and have not signed the Book after 6.12.91 which facilitated the misappropriation of a sum of Rs. 87,420.19 (Rupees eighty seven thousand four hundred twenty and paise nineteen only). You are, therefore, charged with subversive of discipline leading to gross misdemeanour breach of trust and gross negligence of duties.

On completion of the disciplinary proceeding, the competent authority imposed the penalty of stoppage of one annual increment with cumulative effect and ordered recovery of the misappropriated amount of Rs. 87,420.19. Aggrieved thereby the Petitioner has preferred this writ petition for quashing the penalty imposed along with a prayer for quashing the order of transfer.

Mr. R.R. Sarma, learned Counsel for the Petitioner, assailed the order of punishment on the ground that the Disciplinary Authority did not furnish him with the copy of the enquiry report, list of witnesses and other documents relied upon despite his request. The next leg of his argument is that the Petitioner was not a party to the misappropriation committed by the cashier and as such it was wrong on the part of the Disciplinary authority to penalise him as above.

Mr. P. Prasad, learned Senior Counsel for the Respondents reiterating the averments of the counter-affidavit submitted that the Petitioner was negligent in taking appropriate action against the defaulting cashier and in reporting the matter to the higher authorities for a considerable length of time which facilitated misappropriation. That apart, the learned Counsel also pointed out that Rule 16 of the Assam Services (Discipline and Appeal) Rules, 1964, for short ''the Rules'' provides for appeal to the Governor against the order of punishment. Therefore, the Petitioner who had preferred an appeal under the provisions of the Rules, should not have approached this Court during the pendency of the appeal.

Without commenting on the merits of the case at this stage, I would, therefore, like to dispose of the question of maintainability of the writ petition first.

It would appear from Annexure-D that the Petitioner submitted the said petition to the Vice Chancellor of the University seeking review of the penalty imposed on him. In para 22 of the counter affidavit it has been specifically pleaded by the Respondents that the Petitioner has preferred an appeal against the impugned order of penalty dated 19.4.95 and during the pendency of the said appeal, the Petitioner has approached this Court. This has not been controverted by the Petitioner by filing any rejoinder Rule 24 of the rules provides that an appeal preferred under this Rule shall be disposed of as expeditiously as possible and in any case within a period of 3 months from the date of receipt of the appeal. The petition submitted is dated 19.4.95 and the period of three months was due to expire on 19.7.95. But, without awaiting the result thereof, the Petitioner approached this Court on 19.5.95 i.e. before expiry of the period specified under Rule 24 of the rules for disposal of appeal. In the opinion of this Court, since the Petitioner had sought review of the order of penalty, this petition having been filed within the period of three months as specified in Rule 17, it has to be treated as an appeal under Rule 16. Therefore, when the Petitioner himself decided to avail of the alternate statutory remedy provided in the Rules, the writ petition filed by him before disposal of the appeal was premature. In this connection, the decision of the Supreme Court in K.S. Rashid and Son Vs. The Income Tax Investigation Commission etc., can well be referred to wherein it has been observed that here a Petitioner availed of the remedy provided in a statute and the matter had been referred to the High Court in terms of provisions contained in that statute which is awaiting decision, it would not be appropriate to allow the Petitioner to invoke the discretionary jurisdiction under Article 226. Relying on this decision of the Supreme Court, the Calcutta High Court in Sheo Nath Singh Vs. Appellate Assistant Commissioner of Income Tax (Central Range) and Others, held that where a party is perusing an alternative remedy, relief under this article has to be refused However, this High Court in Bidyut Prasad Raha v. Income Tax officer, AIR 1970 Gau 125 , entertained a petition on the ground that in the alternative remedy by way of appeal the jurisdiction of the Income Tax officer passing the impugned order was questioned. The doctrine of exhaustion of statutory remedies was also dealt with by the Supreme Court in Baburam Prakash Chandra Maheshwari Vs. Antarim Zila Parishad now Zila Parishad, Muzaffarnagar, . The Supreme Court in Baburam (Supra) observed that the doctrine of exhaustion of statutory remedies admit of two exceptions. The first exception relays to proceedings taken under provisions of law which are ultravires. The second exception relates to a situation where the implied order was passed in violation of the principles of natural justice. Therefore, the decision in Bidyut Prasad (supra) being one of the cases calling under first exception has no application in the instant case as the vires of the rules is not in challenge in the instant writ petition. Hence, on consideration of the ratio laid down by the Supreme Court in the case discussed above, I am of the opinion that this writ petition cannot be maintained. Learned Counsel for the Petitioner tried to locate the violation of the principles of natural justice in the alleged complaints of non-supply of copy of the enquiry report, list of witnesses and copies of documents.

This necessitates examination of the pleadings and the materials on record to determine as to whether there has been any violation of the principles of natural justice. Before this, it would be appropriate to know the views of the Supreme Court as to what would constitute violation of the principles of natural justice. In the State Bank of Patiala and others Vs. S.K. Sharma, in para 31, the Supreme Court observed as follows:

Now coming back to the illustration given by us in the proceeding paragraph, would setting aside the punishment and the entire enquiry on the ground of aforesaid violation of sub-clause(iii) be in the interest of justice or would be its negation ? In our respectful opinion, it would be the latter. Justice means justice between both parties. The interest of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counter productive exercise.

Holding as above, the Supreme Court summarised as many as seven principles from different decisions which, for the sake of brevity, are not being reproduced here. However, the crux of all the principles is that technicalities and irregularities which do not occasion failure of justice are not to be allowed to defeat the ends of justice.

The procedure to be followed in a disciplinary proceeding have been well specified in Rule 9. The charge sheet (Annexure-A) shows that the petitioner was asked to state within ten days whether he would like to inspect documents and heard in person. A detailed statement of allegations was also attached with Annxure-A. In his reply, Annexure-B, except denial of the charges there is nothing to show that he had Insisted for the copies of any document or that expressed his desire to be heard in person. It was only after imposition of the penalty vide order dated 7.4.95, he had asked for a copy of the inquiry report (Annexure-E dated 27.4.95). The allegations that he was not furnished with list of witnesses, copies of document and enquiry report are, therefore not sustainable. This is a case based on documentary evidence and the Petitioner having taken the plea that he had taken steps in time to correct fee cashier admits of the alleged misappropriation. Whether the Petitioner was in any way negligent in the discharge of his duties as Drawing and Disbursing officer thereby contributing to the misappropriation committed by the Cashier has been dealt with in the enquiry report, Annexure-A attached with the affidavit-in- opposition. It would appear from the enquiry report that both the Petitioner and the Cashier were directed to appear before the inquiry officer for personal hearing and the Petitioner in his oral statement denied his involvement in the misappropriation. That apart, they were again directed to appear on 1.6.94 and 2.6.94 for personal hearing and two separate sets of questionaire based on the statement of allegation were asked to be answered by them. That apart, the report shows that the Petitioner was permitted to inspect the documents during the course of proceedings. Therefore, prima facie I do not find anything on record to come to the conclusion that the Petitioner was treated unfairly. Since the charges were based on documentary evidence, it was not obligatory on the part of the inquiry officer to take oral evidence under the rules. There is nothing on record to show that the Petitioner had a any point of time desired to adduce any evidence in defence. No irregularities are discernable from the pleadings and the documents and, as such, question of prejudice does not arise. In fact, in the given circumstance of the case, I do not find that any technical lapse or procedural irregularity has been committed in the proceeding resulting into failure of justice Therefore, this writ petition cannot be maintained as no case of violation of any of the principles of natural justice could be made out by the Petitioner.

In the result, the writ petition is dismissed. The appellate authority is to dispose of the appeal pending with it within two months from today and may pass appropriate orders as permissible under the Rules without being influenced by the observation made in this judgment.

No order as to costs.