Mom Raj vs District and Sessions Judge and Others

Lokeshwar Singh Panta, J.—By this writ petition under Article 226 and 227 of the Constitution of India, Petitioner Mom Raj Thakur has challenged the punishment order of removal from service dated June 21, 1991 (Annexure-P7) passed by District and Sessions Judge, Mandi in disciplinary proceedings and also order dated 10th February, 1992 (Annexure-P9) rejecting his statutory appeal by the High Court. Similarly, order dated 18th February, 1992 (Annexure-P10) conveying the rejection of his appeal by the High Court is also impugned. He has also prayed for reinstatement with all back-wages and other consequential benefits of service.

The Petitioner was admittedly, appointed as Clerk on May 31, 1982 by the District and Sessions Judge, Mandi in the office of Sub Judge-cum-Judicial Magistrate, Sundernagar. He was promoted as Naib Nazir on 27.5.1985. On March 2, 1988 a charge memo was issued against him framing the following 10 charges:

i) That Shri Mom Raj while working as Naib Nazir in the Court of Sub Judge Sundernagar has been absenting himself wilfully from duties with effect from 20.6.1987 continuously till date.

(ii) That Shri Mom Raj while working as such in the aforesaid Court has failed to hand over the charge of the post he was holding to his successor despite repeated directions issued by the Sub Judge-cum-Judicial Magistrate, 1st Class, Sundernagar vide his letter No. SJ/JM/SNR/87-1132, dated 20.7.1987. He did not even care to hand over the charge despite directions issued from the the office of the District and Sessions Judge, Mandi Division at Mandi vide Memo No. DJ-(R)(Per)/3357, dated 21.8.1987.

(iii) That Shri Mom Raj while working as such in the aforesaid court failed to hand over the keys of the Chest even despite directions issued to him which has created harassment for payment of Road and Diet Money to the witnesses on the date of hearings.

(iv) That Shri Mom Raj while working as such, in the aforesaid court was supposed to hand over the complete charge of the post and cash with keys of the chest etc. on the date of proceedings on leave or immediately thereafter. But he failed to do so and on directions as contained vide letter No. HHC/Admn.2(80)/87-1990 dated 18th August, 198 7 from the Registrar, High Court of Himachal Pradesh, Shimla the chest was broken open and thus, caused unnecessary loss to the Government for breaking open the same.

(v) That Shri Mom Raj, while working as such in the aforesaid court, has failed to pay a sum of Rs. 137/- on account of contingent charges which was drawn on 16.5.1987 till he proceeded on leave/absent i.e. 20.6.1987 which amounts to temporary embezzlement.

(vi) On verification after breaking open the lock of the chest a sum of Rs. 1460.45p was found less according to General Cash Book and thus, he has embezzled the aforesaid amount and retained with him unauthorisedly.

(vii) That Shri Mom Raj while working as such in the aforesaid court has failed to complete the register maintained by him viz. (i) General Cash Book, (ii) Sheriff Petty Account Register, (iii) Disbursement register, (iv) Cash Book of Sheriff Petty Account, (v) Telephone Register and (vi) Casual Leave Register.

(viii) That Shri Mom Raj while working as such in the aforesaaid court has failed to prepare the bills of Addl. Dearness Allowance instalment of the Presiding officer and the ministerial staff since 1.1.1987.

(ix) That Shri Mom Raj while working as such, in the aforesaid court has failed to hand over the keys despite directions given to him by the Sub Judge-cum-Judicial Magistrate, Sundernagar on 17.6.1987, while ha was present in the office and thereby disobeyed the order of his superiors.

(x) That Shri Mom Raj, aforesaid has failed to maintain devotion to duty and has conducted himself in such a manner which is unbecoming of a Government servant and due to his gross negligency in the discharge of his duties, as such, he has contravened the provisions of Rule 3(1)(i), 3(I)(ii) and 3(I)(iii) of the Central Civil Services (Conduct) Rules, 1964, hence this charge sheet.

The Petitioner submitted his explanation by filing a reply on 25.3.1988 (Annexure P-2). Thereafter Shri G.R. Sharma, Additional District and Sessions Judge, Mandi was appointed Inquiry officer to conduct the inquiry. After taking evidence the Inquiry officer found the Petitioner remaining absent without any justification but held that the absence was not intentional and the charge was not proved. As regards not handing ever the charge of his post to some other official the Inquiry officer found the charge not proved. The Inquiry officer also did not believe the evidence of the Department about breaking open the lock of chest and consequently the shortage of cash therein. The sum and substance of the report (Annexure P-3) of the Inquiry officer was that the alleged mis-conduct not being intentional, no mis-conduct can be said to have been proved against the Petitioner. The Disciplinary Authority (District Judge, Mandi), who considered the said report differed with the Inquiry officer and held that charges 1, 2, 4 and 6 we(sic) duly proved. A copy of order dated 26.1.990 (Annexure-P5) taking the different view of the matter alongwith a show cause notice dated 26.5.1990 (Annexure-P4) was served on the Petitioner to which the Petitioner submitted his reply dated 31.7.1990 (Annexure P-6). After considering the reply the Petitioner order dated 21st June, 1991 (Annexure P-7) awarding punishment, of the removal of the Petitioner from service was passed. The Petitioner filed statutory appeal before the High Court which was decided by a learned Judge of this Court on the administrative side. The learned Judge considered the entire material on the record and held that Disciplinary Authority was fully justified in not accepting the report of the Inquiry Officer and confirmed the penalty imposed upon the Petitioner by the said Authority. The appeal was consequently dismissed. On these facts, the Petitioner has filed this petition against the said order of removal.

Disciplinary Authority has filed written statement on the affidavit of Shri Surjit Singh District and Sessions Judge, Mandi to contend that the Petitioner did not apply for leave on 17th 13th or 19th June,1987 as alleged by him. He resumed duty on 17.6.1987 after remaining absent from 18.5.1987 to 16.6.1987 and gave an application for leave only on 20.6.1987 and without waiting for the orders on his application being passed by the Sub Judge, he left the office. It is denied that he handed over the keys of the Almirhas containing cash to Shri Atma Ram. It is stated that prescription slips/OPD were produced by the Petitioner during the course of inquiry but there is no mention in any of the documents that he was so sick that he required medical leave. The Petitioner was an out-door patient and he did not get himself treated in the hospital which fact would go to show that he was not suffering from any ailment. It is stated that as per documents his ailment was not so serious which prevented him from discharging his duties as Naib Nazir. It is further submitted that certain responsibilities are attached to the post of Naib Nazir in the Courts and if he remains absent without any prior information, it will adversely affect the smooth functioning of the courts, as the Petitioner has to deposit and disburse the expenses of witnesses, distribute the processes among the Bailiffs and the Process Servers. Therefore, a person who remains absent without prior information is not a fit person to be retained as Naib Nazir, otherwise, public and litigants will suffer. The sum and substance of the reply is that the action of the Respondents removing the Petitioner from service has been held justified.

Written statement has been filed on behalf of High Court on the affidavit of Shri M.D. Sharma, Deputy Registrar (Rules). In paragraph 17 of the reply, it is contended that the service appeal preferred by the Petitioner was duly considered by the replying Respondent and after taking into consideration all relevant material on record the same was found devoid of any merit and dismissed. It is submitted that the appeal of the Petitioner was placed before the competent authority as per distribution of work made by the Hon''ble Chief Justice and the order of dismissal of the appeal was passed by the competent authority which was conveyed to Distt. and Sessions Judge, Mandi vide letter dated 10th February,1992 (Annexure P-5). It is also stated that the penalty awarded to the Petitioner is fully in commensurate with the mis-conduct proved against him. The Petitioner has not filed replication to these replies.

We have heard Shri H.M. Sharma, learned Counsel for the Petitioner and Shri Shrawan Dogra, learned Counsel for the Respondents and perused the relevant record. Shri Sharma submitted that from reading of the charge sheet memo it is revealed that Respondent No. 1 had pre-judged the issue and the Disciplinary Authority non-suited the Petitioner on the grounds other than those on which he was not held guilty by the Inquiry officer. He contended that there was no application of mind by the Appellate Authority, that finding was vitiated by incorrect appreciation of evidence and that the punishment was disproportionate to the alleged mis-conduct. Shri Sharma has placed reliance on Bhursinh Hamsinh Rajput v. The State of Gujarat and Anr. (1982 (1) S L J 697). We have gone through this judgment. In that case the facts were that medical certificate was produced by the delinquent from Government Hospital and leave without pay was sanctioned to him for the period he remained absent. There is no similarity of facts in the instant case.

Shri Dogra learned Counsel for the Respondents has supported the correctness of all the said findings of the Disciplinary Authority. He has contended that in service matters this Court in a proceeding under Article 226 of the Constitution will not act a Court of appeal over the decision of the authorities holding a departmental inquiry against a public servant, as the inquiry was held by an authority competent in that behalf and according to the procedure prescribed. He submits that power to impose a penalty on the delinquent officer is conferred on the competent authority. If there has been an inquiry consistent with the rules and in accordance with the principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. In support of his. contentions reliance has been placed on Union of India (UOI) Vs. Parma Nanda, and State Bank of India and Others Vs. Samarendra Kishore Endow and Another, .

We have gone through the entire case file to satisfy whether there was any illegality in the impugned orders. The view taken by the inquiry officer that the alleged acts of the Petitioner were not intentional has really no basis in law. It appears from the record that the Petitioner went on leave from 16.5.1987 to 16.6.1987 after handing over the charge of the post to one Man Singh, Civil Ahlmad working in the court of Sub Judge-cum-Judicial Magistrate Ist Class, Sundernagar and had given a sum of Rs. 3150/- as the amount of cash in hand to the later. On return from leave Petitioner was given a sum of Rs. 347/- in cash by the said Civil Ahlmad and for the rest of the amount, accounting was done. Thereafter, the Petitioner absented fr.om duty with effect from 20.6.1987 without sanction of leave and while leaving the office he did not hand over the charge of his post to anybody. He left the keys of two Almirahas in the office. The Petitioner used to keep cash and other valuable articles and important documents in locker of one of the Almirahas. He did not hand over the key of that locker either to the Presiding officer of the Court or to any other official while leaving the office, on the aforesaid date. It has come on the record that the notices were issued to the Petitioner by the Presiding officer requiring him to join the duty or to hand over the charge of cash and other important documents to some other official working in the said court. The Petitioner did not pay any heed to the aforesaid notices. The Presiding officer reported the matter to District & Sessions Judge, who issued a notice to the Petitioner requiring him to join the duty within two days from the date of the receipt of the notice. The notice was served upon the Petitioner on 23.8.1987/24.8.1987. Despite this notice the Petitioner did not resume the duty nor he handed over charge to any other official. Ultimately, the matter was reported by District & Sessions Judge, Mandi to the High Court and Registrar(Vig) on 17.8.1987 addressed a letter to Sub Judge, Sundernagar whereby Sub Judge, Sundernagar was directed to break open the chest On 4.9.1987 the chest was got broken open from one Mechanic at Sundernagar in the presence of eight officials and an inventory of the cash and other articles recovered from the chest were drawn up. After the chest was broken open a sum of Rs. 568.35p was recovered from the chest whereas according to the entries in the cash book, balance of cash in hand should have been Rs. 2,029.30p. Therefore, a shortage of Rs. 1459.95p was detected and report was submitted by Sub Judge to the Registrar(v) of High Court on 4.9.1987. The Disciplinary Authority has relied upon the evidence of Man Singh (PW/5) a Clerk in the office of Sub Judge, Sundernagar, who deposed that on 20.6.1987 Petitioner received a telegram that someone in his house was ill and his presence was required and so he wanted to go on leave. He further stated that before leaving the office, Petitioner wanted to hand over the money to Atma Ram another Clerk but when latter refused, he threw the money on his table and left the office. On -6.7.1987 the work of Naib Nazir was assigned to him by the Sub Judge and on 20.7.1987 under the instructions of Presiding officer, he completed the cash-book. He also stated that on 28.7.1987 he visited the Petitioner in his native place as per direction of Presiding officer and demanded keys of the chest from him but the Petitioner told him that the keys were at his temporary residence at Sundernagar under the pillow of his bed. He also stated that Petitioner gave him keys of his temporary residence at Sundernagar and when he went to that residence in the company of one Joginder Singh, Advocate who was deputed by the Presiding officer to search for the keys, he did not find the keys either under the pillow of his bed or anywhere else despite thorough search. He also deposed that on 7.8.1987 he received two money orders, one for Rs. 1000/- and the other for Rs. 800/- from the Petitioner and another sum of Rs. 200/- was remitted to him by the Petitioner in the month of March, 1988. The Disciplinary Authority has recorded that this statement had not been disputed by the Petitioner as no cross-examination was directed by him. Atma Ram (DW-3) in his cross-examination has categorically stated that key of the chest had never been given to him by the Petitioner and only the key of the almirah in which locker is fitted was given to him. The Disciplinary Authority has exhaustively dealt with the oral as well as documentary evidence produced on record in his report and found that the Petitioner had gone on leave without handing over the charge to anyone and had also remained absent after the expiry of the leave period. On the basis of the evidence on record the admitted position is that thejre was no illegality in taking the different view by Disciplinary Authority other than the one taken by the Inquiry Officer. An employee working in an important post like that of the Petitioner cannot simply walk out of his job without handing over the charge to anyone. Similarly, he cannot remain absent without obtaining leave. These conducts would definitely show that he has little regard for the discipline and work for which he was employed. The Petitioner has been found to have misappropriated the amount of Rs. 1459/- and also retained Government money to the tune of Rs. 1800/- upto 7.8.1987 and Rs. 200/- upto March, 1988 and thus commited the act of temporary embezzlement. Under the circumstances, there was no justification whatsoever for thel Inquiry officer to hold that the Petitioner was not found guilty for the charges levelled against him. There is, therefore, enough justification for the Disciplinary Authority to take a different view of the matter. The report of the Disciplinary Authority, report of the Inquiry officer and all necessary papers were given to the Petitioner and his explanation was obtained which would prove that necessary procedure Was folowed. The appeal has been considered by the learned Single Judge of this Court sitting on the administrative side, who has recorded his detailed reasons confirming the order of the disciplinary authority.

In State of Andhra Pradesh Vs. Sree Rama Rao, it was held by the Apex Court that:

The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental inquiry against a public servant; it is concerned to determine whether the inquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the inquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of inquiry or where the authorities have disabled themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion or on similar grounds. But the departmental authorities are, if the inquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which the findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding ... under Article 226 of the Constitution.

This principle was reiterated in State Bank of India and Others Vs. Samarendra Kishore Endow and Another, .

Now coming to the power of the Court exercising the judicial review to interfere on the question of penalty, it was held by a Constitution Bench in State of Orissa Vs. Bidyabhushan Mohapatra, thus:

But the Court in a case in which an order of dismissal of a Public servant is impugned, is not concerned to decide whether the sentence imposed, provided it is justified by the rules, is appropriate having regard to the gravity of the misdemeanour established. The reasons which induce the punishing authority, if there has been an inquiry consistent with the prescribed rules, are not justiciable: nor is the penalty open to review by the Court. If the High Court is satisfied that if some but not all of the findings of the Tribunal were ''unassailable'', the order of the Governor on whose powers by the rules no restrictions in determining the appropriate punishment are placed, was final, and the High Court had no jurisdiction to direct the Governor to review the penalty for as we have already observed the order of dismissal passed by a competent authority on a public servant, if the conditions of the constitutional protection have been complied with, is not justiciable. Therefore, if the order may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the inquiry officer or the Tribunal prima facie make out a case of misdemeanour, to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation of the rules of natural justice.

This principle was reiterated in Railway Board Representing The Union of India (UOI) Vs. Niranjan Singh, , Bhagat Ram Vs. State of Himachal Pradesh and Others, and Union of India (UOI) Vs. Sardar Bahadur, .

For the foregoing reasons and in the light of settled law referred to above, there is no justification for taking any different view of the matter. No injustice has been done to the Petitioner. There is no substance in the writ petition which fails and is dismissed. However, the parties are left to bear their own costs.