Kashi Ram Agarwal vs State of Rajasthan and Others

P.K. Lohra, J.—Assailing the impugned order of reversion dt. 28th of October 1994 (Annex. 2), the petitioner has laid the instant writ petition. The facts in brief giving rise to this petition are that at the threshold of his service career, petitioner was appointed as Lower Division Clerk in the office of Krishi Upaj Mandi Samiti, Abu Road w.e.f. 17th of December 1971. While in service, petitioner availed promotion to the post of Upper Division Clerk in June 1984 and was ordered to be posted in the office of third respondent. The petitioner continued to serve in the office of third respondent as UDC upto 20th of April 1987 and thereafter he was again transferred to Abu Road. While discharging his duties in the office of fourth respondent as UDC, the petitioner was suspended under the order dt. 21st of July 1987 pending a departmental enquiry in connection with alleged financial irregularities in provident fund accounts of the employees. The suspension of the petitioner was followed by a charge-sheet under Rule 53 of the Rajasthan Krishi Upaj Mandi (Mandi Samiti Employees) Service Rules, 1975 (for brevity, hereinafter referred to as ''Rules of 1975''). Elaborating the procedure of enquiry under Rule 53 of the Rules of 1975, the petitioner has pleaded in the writ petition that for conducting such an enquiry detailed procedure is provided but while conducting enquiry against him, the established procedure was not adhered to. Emphasizing need for supply of incriminating documents and other materials, petitioner has categorically averred in the writ petition that the documents were neither supplied to him, nor he was allowed to have access with the record by way of inspection despite repeated requests. In totality, the petitioner has questioned validity of the enquiry conducted against him on the ground that same was concluded in defiance of principles of natural justice. Alleging in the petition that petitioner was not guilty of the charges, the petitioner has submitted in the writ petition that for the alleged omissions the petitioner had no casual connection. The order of reversion dt. 7.1.1999 (Annex. 2) was also called in question on the ground that before issuance of the said order, the petitioner was not furnished copy of the enquiry report. The petitioner has also stated in the writ petition that on the same set of facts criminal prosecution against him was launched under Sec. 409, 467, 471 IPC and after trial he has been acquitted by the competent criminal Court. As per petitioner, the order of reversion was assailed by him before the appellate authority but his said effort also proved to be abortive and the appellate authority has also rejected his appeal by an absolutely vague and cryptic order dt. 6th March 2000.

Respondent No. 1 & 2 in their reply have raised the preliminary objection that after passing of the order by the appellate authority, the petitioner has laid this petition with inordinate delay and laches of more than three years and for this delay there is no explanation much less plausible explanation in the petition. Therefore, persisting with that objection the respondent No. 1 & 2 have sought dismissal of the writ petition solely on the ground of delay and laches. Adverting to the averments of the petitioner regarding the procedure adopted during enquiry, the respondents have submitted that the enquiry was conducted in strict adherence of principles of natural justice. Alongwith the reply, letter of petitioner dt. 30th January 1990 is also enclosed as Annex. R/1 wherein the petitioner has very candidly submitted that he is not desirous for inspection of the record. With these assertions in the reply, the respondent No. 1 & 2 have stoutly defended the impugned order of reversion as well as the order passed by the appellate authority.

The respondents No. 3 & 4 in their separate reply have placed on record letters dt. 3rd of August 1987 (Annex. R/3/1) submitted by the petitioner before the Secretary Krishi Upaj Mandi Samiti, Jodhpur. Asserting with full emphasis the recitals contained in these letters, the respondents have specifically pleaded that the petitioner has admitted his guilt that he has misappropriated the funds from PF accounts of the employees and part of the misappropriated amount has already been deposited by him. He has further prayed for permitting him to deposit the remaining amount. That apart, the respondent No. 3 & 4 have also specifically averred in the reply that enquiry was conducted in a fair and impartial manner in strict adherence of the principles of natural justice.

Learned counsel for the petitioner Mr. Sanjeet Purohit, has strenuously urged that the order impugned whereby the petitioner is reverted to the post of Lower Division Clerk from UDC is bad in law because the same is founded on a laconic enquiry which was conducted by the respondents in ignorance of principles of natural justice. While referring to Annex. R/1 and letters Annex. R/3/1, the learned counsel for the petitioner has argued that solely on the strength of these documents, it cannot be said that the petitioner is guilty of defalcation. Buttressing his submissions, the learned counsel for the petitioner would urge that legal infirmity in the impugned order of reversion is writ large and the same is not sustainable in the eye of law. Attacking the order of the appellate authority, learned counsel for the petitioner has submitted that the appellate authority has not examined the grounds of appeal objectively and while rejecting the appeal the appellate authority has not assigned appropriate reasons and therefore the order of appellate authority is not a speaking order and as such the same is not sustainable.

Per contra, Mr. Mahendra Prajapat has vehemently argued that the impugned order of reversion has been passed as a consequence of indictment of the petitioner in the departmental enquiry and therefore no interference with the impugned order of reversion is warranted. Learned counsel for the respondents has urged that allegations against the petitioner were very serious inasmuch as he has misappropriated the funds from the PF account of the employees and therefore no charitable view by this Court is desirable in this matter. Substantiating his contentions, the learned counsel for the respondents has submitted that in view of admission of guilt by the petitioner for the misconduct of defalcation, which is clearly evident from Annex. R/3/1 and Annex. R/1, no indulgence can be granted to the petitioner in exercise of extraordinary equitable jurisdiction of this Court enshrined under Article 226 of the Constitution of India. Learned counsel for the respondents would urge that the petitioner was afforded reasonable opportunity during enquiry but he himself has not availed the same therefore now after the conclusion of enquiry he cannot be permitted to raise such a grievance. As the enquiry officer has recorded finding of guilt against him, the same cannot be faulted in any manner whatsoever. Learned counsel for the respondents has submitted with full emphasis that incumbent like the petitioner, who was found guilty for embezzlement of the funds of the PF of the employees has been rightly meted out with the punishment of reversion and the said punishment is commensurating with the proved misconduct.

I have heard the learned counsel for the parties and perused the materials on record.

The contention of the learned counsel for the petitioner for alleged violation of principles of natural justice during departmental enquiry appears to be quite attractive but in the background of the facts of the instant case the said argument is per-se bereft of any merit. The relevant fact that petitioner has admitted his guilt and has voluntarily submitted application Annex. R/1 showing his unwillingness to inspect the record with a further request to conclude the enquiry clearly and unequivocally reveals that the petitioner himself has not availed the opportunity to defend himself. If a delinquent employee has not availed the opportunity then obviously it is not open for him to subsequently make a complaint about non-observance of principles of natural justice. Hon''ble Apex Court in case of Bank of India Vs. Apurba Kumar Saha, has held as under:

Having regard to the arguments addressed by learned counsel on both sides we have gone through the papers and seen that the High Court''s view that there was violation of principles of natural justice, in conducting the disciplinary proceedings against the respondent, was wholly unjustified. The records of the disciplinary proceedings show that the respondent had avoided filing of the written explanation for the charges of misconduct levelled against him and also had for no valid reason refused to participate in the disciplinary proceedings. A bank employee who had refused to avail of the opportunities provided to him in a disciplinary proceeding of defending himself against the charges of misconduct involving his integrity and dishonesty, cannot be permitted to complain later that he had been denied a reasonable opportunity of defending himself of the charges levelled against him and the disciplinary proceeding conducted against him by the Bank employer had resulted in violation of principles of natural justice of fair hearing.

For recording proof about the guilt of a delinquent employee on the basis of admission of the charges by the employee, reliance can be profitably made to a decision of Apex Court in case of Additional District Magistrate (City) Agra Vs. Prabhakar Chaturvedi and Another, In this verdict the Apex Court has held that candid admission of the charge by the delinquent employee is sufficient to conclude that charge is already proved against him and subsequent request of such employee for examining witnesses cannot be entertained by the enquiry officer. In the instant case, the facts are more glaring inasmuch as the petitioner has not made any endeavour to examine any witnesses after admitting the guilt. Therefore, the ratio decidendi of the judgment of the Apex Court in Addl. District Magistrate (City) Agra''s case is fully applicable to the facts and circumstances of the present case. The Apex Court in its conclusion has observed in Para 4 as under:

Having considered the rival contentions and also having gone through the written submissions filed on behalf of Respondent I we find that the order of the High Court cannot be sustained. So far as non-supply of Enquiry Officer''s report is concerned it has to be kept in view that no such contention was raised in the writ petition before the High Court. The High Court has noted this aspect. Nothing could be pointed out to us by learned counsel for the respondents to controvert this observation of the High Court. Whether the pleadings in the writ petition should be treated as pleadings in a suit or not is not relevant for deciding this question. Reliance placed in the written submission on R. vs. Barnsley Metropolitan Borough Council also is of no avail to Respondent 1. The said decision cannot support the contention canvassed on behalf of Respondent 1 that even if there is no grievance made in the writ petition the High Court is bound to consider the said grievance. So far as the grievance about the non-examination of witnesses and non-supply of documents is concerned, in our view, the High Court has erred in ignoring the salient features of the case, namely that Respondent 1 himself by his statement dt. 14.12.1984 admitted to have received an amount of Rs. 21,000 and odd and which could not be deposited by him along with his associate on account of their carelessness and fault. It is difficult to appreciate how the said statement could be said to have been brought about by any coercion as tried to be submitted on behalf of Respondent 1. But even apart from that the order sheet of the Enquiry Officer clearly shows that Respondent 1 Prabhakar as well as Sajan Kumar had submitted that they have not to give any documentary or oral evidence and that is how their evidence was closed. Under these circumstances the subsequent request by Respondent 1 to examine four more witnesses was rightly considered by the Enquiry Officer to be an afterthought and accordingly such request was rightly rejected. In fact on account of the clear admission contained in writing given by Respondent 1 on 14.12.1984 the charge against him stood proved on admission and the only question that remained to be considered was about the nature of punishment to be imposed on him. When Respondent 1 was guilty of misappropriation of such a large amount of Rs. 21,000 and odd for couple of months it could not be said that the punishment of dismissal as imposed on him was in any way uncalled for or was grossly disproportionate to the nature of the misconduct proved against Respondent 1. For all these reasons the order of the High Court cannot be sustained and is, therefore, quashed and set aside. The writ petition filed in the High Court will stand dismissed. However, in the facts and circumstances of the case, there will be no order as to costs.

Scanning entire materials on record makes it amply clear that the petitioner has admitted his guilt. Moreover, it is clearly discernible from the materials on record that during the course of enquiry the petitioner was afforded reasonable opportunity of being heard and the finding of guilt was recorded against him on the strength of availability of umpteen incriminating material against him. It is a trite law that an employee is required to discharge his duties with honesty and integrity. Misconduct of defalcation is a very serious omission on the part of an employee reflecting his honest and integrity. The consistent view of the law Courts is that an employee, who is guilty of misappropriation is not even liable to be retained in service. In the instant case, inspite of the fact that the petitioner was found guilty for defalcation, the employer has taken a very benevolent decision in simply reverting him from his promotional post, which cannot be faulted in any manner whatsoever.

The objection about delay in launching this litigation is also significant because the petitioner has preferred this writ petition after a lapse of three years from the date of the order of the appellate authority. Admittedly, there is no explanation about this delay in the writ petition and as such the petitioner is also liable to be non-suited on the ground of delay and laches. The upshot of the above discussion is that I find no merit in this writ petition and the same is accordingly dismissed.

No order as to costs.