Nitya Gopal Saha VsThe State of Tripura

S. Talapatra, J.—By means of this petition, the petitioner has challenged the order No. F.12(3)-PWD(E-II)/2002 dated 20.12.2006, Annexure-L to the writ petition. The petitioner has been dismissed from the service w.e.f. 20.12.2006 by the said order based on the finding that the petitioner has committed serious misconduct, unbecoming of a Government servant and his retention in the public service is undesirable.

The petitioner while working as the Cashier, even though holding the substantive post of Lower Division Clerk was slammed with the memorandum of charge under No. F.12(3)-PWD(E-II)/2002 dated 13.09.2004. The following articles of charge were brought against him:

Article of Charge-I

That Shri Nitya Gopal Saha, L.D. Clerk during his service in Gas Thermal Electrical Division, Rokhia for the period from April, 1997 to December, 2001 deliberately failed to maintain absolute integrity and devotion to duty and carry out faithfully the duty and responsibilities entrusted to him as a public servant.

Such activities of Shri Nitya Gopal Saha, L.D. Clerk attracts Sub-rule (1) of Rule-3 of TCS (Conduct) Rules, 1988 which is good and sufficient reasons within the meaning of Rule-11 of the Central Civil Services (C.C. & A) Rules, 1965 for proceeding against him under Rule-14 of the said Rules.

Article of Charge-II

That during the aforesaid period while functioning in the aforesaid office Shri Nitya Gopal Saha, L.D. Clerk was entrusted with the duty of cashier in that office. He made multiple entries in the Cash Book of the D.D.O. (Executive Engineer, Gas Thermal Electrical Division, Rokhia). It is also found that so many vouchers have been repeated twice or more than twice in the Cash Book.

That Shri Nitya Gopal Saha, L.D. Clerk made multiple entries in the Cash Book with ill intention to get money for his own pocket with diversified technique by false entries on different dates during the material period. Cash issued to the Sub-Divisional Officers as Temporary advances and Imprest and prepared fake vouchers by manipulation of the original vouchers, presented them for obtaining signature of the D.D.O. in the cash book and removed the cash from chest severally. Thus loss of govt. money beyond the actual expenditure was about more than Rs. 5.01 lacs.

From the above, Shri Nitya Gopal Saha is liable for violation of the provision of Rule-3 of the Tripura Civil Services (Conduct) Rules, 1988 which is good and sufficient reason within the meaning of Rule-11 of the C.C.S. (C.C. & A) Rules, 1965 for proceeding against him under rule-14 of the said Rule.

It is apparent from the statements of imputation and misbehavior that the petitioner had voluntarily refunded the entire misappropriated money amounting to Rs. 5,01,299/- (Rupees Five Lakhs One thousand Two hundred Ninety Nine) by two instalments vide the challan No. R-18 dated 05.02.2002 and Chalan R-1 dated 04.07.2002

There is no dispute that at that time the petitioner had been working as the Cashier and he failed to furnish the vouchers against which some entries in the cash book were made. Thus, adjustment by fake vouchers had surfaced during the audit conducted by the Accountant General, Tripura. It also surfaced that the petitioner removed cash from the chest to the extent of Rs. 5,01,299/- (Rupees Five Lakhs One thousand Two hundred Ninety Nine). However, on such discovery the petitioner had voluntarily refunded the said amount, as noted in the memorandum of the charge. This part of the statement has not been disputed even by the petitioner. However, he had filed a reply to the memorandum of charge on 27.09.2004. In that reply, he has added that he was pressurized to refund the said amount. Even he wanted to pass the buck on to some other officers. However, the disciplinary authority was not satisfied by his reply and it referred the matter to the Addl. Commissioner for Departmental Enquiries to enquire into the charges. Accordingly, the Addl. Commissioner for Departmental Enquiries enquired into the charges on affording all opportunities to the delinquent officer.

After appreciating the records and the written brief of submissions of the delinquent officer, the Addl. Commissioner for Departmental Enquiries had submitted his finding on 03.07.2006, Annexure-I to the writ petition. He observed there as under:

"Viewed in the above prospective, I find and hold that the prosecution has successfully proved the article of charges brought against the Accused Officer, viz. Sri Nitya Gopal Saha, LDC. Therefore, the A.O. namely, Shri Nitya Gopal Saha, L.D.C. is found guilty for violation of clauses (i) to (iii) of sub-rule 1 of Rule 3 of TCS (Conduct) Rules, 1988.

The petitioner was supplied with a copy of the said findings dated 03.07.2006 for making representation, by the memorandum dated 18.09.2006, Annexure-J to the writ petition. In terms thereof, the petitioner filed the representation on 18.10.2006 stating inter alia that:

I being Cahier holding a very small post vest never responsibilities for preparation and passing of any fake bills as attributed upon mine as the same job and power are not vested to me. The rest thing remained the missing vouchers which may be authenticated from the Cash Book itself as narrated above, as no entries in the Cash Book are acceptable to the DDO without supported by the relevant vouchers already passed for payment. It is also put to your kind knowledge that it is obvious that such huge amount in such spell could not be arranged from the end of the poor paid employee and thus the same has been regularized on behalf of the DDO as suggested with monetary arrangements.

The disciplinary authority was not persuaded by the said representation at all and by the impugned order dated 20.12.2006, Annexure-L to the writ petition, dismissed the petitioner from service w.e.f. 20.12.2006.

Being aggrieved, the petitioner filed an appeal under Rule 23 of the CCS (CC & A) Rules, 1965 on 19.01.2007.

According to Mr. P. Roy Barman, learned counsel appearing for the petitioner, the said appeal has not been disposed as yet. The respondents also by filing the counter affidavit have admitted that the said appeal has not been disposed of. But this Court is, after such a long time of pendency, not inclined to pass any direction for consideration of the appeal.

For ends of justice, we have taken care of the grounds of objection raised in the appeal. On scrutiny of the records, in particular the findings of the Addl. Commissioner for Departmental Enquiries and the consequential orders passed by the disciplinary authority, we are of the view that all procedural safeguards have been provided to the petitioner but the petitioner has failed to prove the existence of the vouchers by dint of which he had adjusted the said sum of Rs. 5,01,299/-(Rupees Five Lakhs One thousand Two hundred Ninety Nine) in the cash book and to explain why he had refunded the said amount, if he was not at all responsible. The refund by itself is an act by which other objection raised in the petition can be rejected. However, we have meticulously considered whether the petitioner was denied any opportunity due to him. It has appeared from the records that the petitioner was afforded with all the opportunities provided by Rules 14 & 15 of CCS (CC & A) Rules, 1965. The petitioner even could not prove whether the D.D.O. had verified such adjustment in the cash book. It has not been denied by the petitioner that the entries in the cash book were made by him as the Cashier. He had repeatedly stated that those vouchers did exist. He has also not denied that the even though he was a Lower Division Clerk, he was holding the charge of the Cashier.

Mr. P. Roy Barman, learned counsel appearing for the petitioner has fervently urged to look into the aspects of proportionality of the punishment, particularly in view of that the petitioner had refunded the entire amount.

Mr. J. Majumder, learned counsel appearing for the respondents has submitted that when it is a breach of trust, it cannot be held that the punishment of dismissal is disproportionate.

Having regard to the records, we are of the firm view that finding as to the guilt of the petitioner does not call for any interference. As there is no controversy that the petitioner has refunded the entire amount, no loss has been caused to the Government exchequer. Notwithstanding that, the misconduct that the petitioner has committed can neither be exonerated nor can he be retained in the public service. However, we have been strongly persuaded by the circumstances of this case to convert the penalty from dismissal from the service to that of the compulsory retirement w.e.f. 20.12.2006 (afternoon). The petitioner shall thus be entitled to the pensionary benefits w.e.f. 21.12.2006. It is made clear that the petitioner shall not get any further benefit for the period of suspension as we have not interfered with the finding of the guilt.

With the said observation and modification, this writ petition stands disposed of. However, there shall be no order as to costs.