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Judgment
Biswanath Rath, J.
This writ petition involves a challenge to Annexure-8, an order passed by the Disciplinary Authority involving an enquiry initiated against the
petitioner-employee, Annexure-10 involving an order of the Appellate Authority, Annexure-12, an order of the Chairman appearing to be a decision in
Second Appeal at the instance of the petitioner, the delinquent and Annexure-13, an order of the Establishment for recovery of Rs.1,03,529/- but
however, @ Rs.5,000/- per month from the salary of the petitioner, the delinquent with effect from November, 2009.
Background involving the case is that the petitioner working as Assistant Administrative Officer in the Bhadrak Branch of Life Insurance
Corporation of India (for short “LIC†of India) was allotted duties and responsibilities of keeping the cash boxes of the Branch in the Iron Safe
inside the Strong Room under lock and key at the end of the day after transaction of the Branch is over and also to remove the cash boxes from the
Iron Safe at the beginning of Office hours by placing the cash boxes with Cashier in cash counters till the end of the working hours. The Iron Safe of
the Branch is normally operated by two Officers of the Branch ; one the petitioner being the holder of the Key No.1 and the other Officer, namely, Sri
N.C. Das being the holder of Key No.2. As per routine procedure, the cash boxes are kept and removed in presence of both the key holders and also
require taking help of the sub-staff for the purpose of carrying the cash boxes to places involved. Petitioner claimed that the Branch at Bhadrak was
operating in a rented building and after construction of its own building, the process of shifting started on 15.05.2004. The Iron Safe in the Branch
contained three movable cash boxes and the Iron Safe is located inside the chamber of the Branch Manager at the first floor of the Branch. The cash
counters are located in the ground floor of the building. It is stated on 15.05.2004, petitioner and other Officer being the key holder of Key No.1 and
Key No.2 respectively opened the Iron Safe for shifting of boxes to the cash counter using their respective keys and removed two cash boxes and one
daily wager namely, Sri Subash Nayak assigned for the job carried the two cash boxes in each hand accompanying the petitioner to the cash counters
where those two boxes were delivered at counter no.2 and counter no.4. In the meantime, the other Officer was standing near the Iron Safe. After
delivery of two boxes the petitioner and above named daily wager came back to the Strong Room and then removed the third cash box as well as one
packet containing few loose notes. In the same process, after removing the third cash box, petitioner asked the said daily wager to wait till the Iron
Safe and Strong Room were locked and started the process of locking the Iron Safe as well as the Strong Room by himself and by the other Officer.
It is also disclosed here that after locking the Iron Safe and the Strong Room, when the petitioner looked back he found the said sub-staff was not
available there and he had gone away with the cash box along with the packet containing loose notes. Upon finding the daily wager he asked the daily
wager as to why he left the Strong Room without petitioner’s knowledge, to which the daily wager replied him that he had already delivered the
same at the desired counter. It is at this point of time, petitioner went to counter no.4 and asked about receipt of second cash box but he was
responded by the cashier saying that he had received only the first cash box and not received the second cash box. Petitioner immediately moved to
the Office Gate and asked the Security to close the Gate and not to either allow entry of any person or exit of any person. Petitioner along with others
searched the Office premises and outside the boundary but they failed to trace the third box accounted for a sum of Rs.2,07,057.43p. An F.I.R. was
immediately lodged. Consequent upon theft of cash from the Branch of the LIC, the Disciplinary Authority, vide letter dated 21.06.2005 initiated a
disciplinary proceeding followed with issuing charge-sheet against the petitioner. Charges were framed under two counts. First charge involving the
petitioner is that the petitioner did not accompany the daily wager all along in shifting of all the three cash boxes and plastic bag containing loose notes
from the Iron Safe to the cash counter, which led to theft of the third cash box containing a sum of Rs.2,07,057.43p. and thus the petitioner has failed
to maintain absolute integrity and devotion to the duty. The second charge the petitioner faced is that he failed to serve the Corporation honestly and
faithfully thereby violating the provisions of Regulations 21 and 24 read with Regulation 39(1) of the LIC of India Staff Regulation, 1960 (in short
“the Regulation, 1960â€). Petitioner submitted his response to the charges on 01.07.2005. The Disciplinary Authority being not satisfied with the
response of the petitioner initiated disciplinary proceeding. Enquiry Officer being appointed, the matter was enquired into. Finally the Enquiry Officer
after observing involvement of the petitioner submitted his report on 31.10.2005. On the copy of the enquiry report along with forwarding letter being
served on the petitioner, he was asked to submit his response, which the petitioner submitted, vide Annexure-5. Vide letter dated 19.10.2006, the
Disciplinary Authority called upon the petitioner to show cause as to why he should not be held guilty of the charges and the proposed penalty of
Censure and recovery of Rs.1,03,529/- be not imposed on him. After the petitioner submitted his response, vide Annexure-7 to the notice involving
Annexure-6, Disciplinary Authority in conclusion of the departmental enquiry, finding the petitioner guilty of charge No.2 imposed on the petitioner the
penalty of Censure and recovery of Rs.1,03,529/- being 50% of the total loss of Rs.2,07,057.43p in terms of Regulations 39 (1) (a) and 39 (1) (c) of
the Regulation, 1960, as finds place at Annexure-8 to the writ petition.
Being aggrieved, petitioner preferred an Appeal under Regulation 40 of the Regulation, 1960, inter alia, contained that he is no way connected with
the charges framed. Considering the claim of the petitioner contesting the order passed by the Disciplinary Authority, the Appellate Authority, vide
order dated 24.05.2008 rejected the Appeal finding no scope for interfering with the order passed by the Disciplinary Authority.
Petitioner being aggrieved by the order of the Appellate Authority, vide Annexure-10 preferred a Memorial under Regulation 49 of the Regulation,
1960 before the Chairman, opposite party no.2, who has been pleased to reject the Memorial of the petitioner.
Assailing the orders passed by the different authorities indicated hereinabove, petitioner preferred the present writ petition on the premises that the
Strong Room and the Iron Safe are all locked inside the Chambers of the Branch Manager. Clause-4 of the Manual in operation provides under the
heading ‘safety of cash and keeping of safe keys’ that the authorized person holding the keys shall keep the cash box containing cash safely
locked in the Iron Safe at the close of business of each working day and hand over the same to the Cashier every morning. There was no permanent
sub-staff in the Bhadrak Branch and daily wagers have been engaged to carry the cash boxes as per the order of the Branch Head. It is contended
that on 15.05.2004 the only daily wager present in the Office was Sri Subash Nayak as all other daily wagers were engaged by the Branch Manager
for shifting of Office, furnitures etc. from the old building to the new building, and therefore, the Cashier of the Branch never accompanied the holder
of the keys to the Iron Safe, for which, the petitioner was compelled to accompany the said daily wager to the cash counter at the time of delivery of
first two cash boxes leaving the other key holder near the Iron Safe. After removal of the third cash box and the plastic bag containing loose notes, the
petitioner instructed the daily wager to remain standing till locking of the Iron Safe as well as the Strong Room is over. Petitioner alleged that it is at
this stage he surprisingly did not find the daily wager and the daily wager had already left the place carrying the third box. Petitioner claimed that he
could only come to know from the Cashier that the daily wager had not handed over the third cash box to him and he had only received the plastic bag
containing loose notes from the daily wager. It is also asserted that the petitioner even asked the Security to close the door and not allow any entry or
exit till the search is over. By calling the Police he also got the daily wager arrested involving the F.I.R. and there has already been submission of
charge-sheet against the daily wager under the provision of Section 406 of the I.P.C. In the circumstance, the petitioner claimed that he cannot be
held responsible for loss of cash, if any.
Sri U.C.Pattnaik, learned counsel for the petitioner on reiteration of the facts involved herein in his plea submitted that for the clear disclosure by
the petitioner that the third cash box and the packet containing loose notes since were already handed over to the daily wager and for the clear
disclosure by the petitioner that after the petitioner locking the Iron Safe as well as the Strong Room found the daily wager already left the place with
the cash box, further there is also admission by the petitioner that he could only come to know from the person attached to the cash counter that the
third box did not reach him, further on the basis of the F.I.R. at the instance of the Institution said daily wager since is facing trial under Section 406 of
the I.P.C., the petitioner could not have been held responsible for the loss of the amount involved herein. Sri Pattnaik, learned counsel also referring to
the plea of the petitioner before the Enquiry Officer and the contents of the enquiry report contended that there has been no proper enquiry before
coming to hold the petitioner guilty. Sri Patnaik also contended that even though the petitioner raised all these grounds before the Appellate Authority
as well as the highest Authority of the Institution, i.e. the Chairman, everybody failed to appreciate the grounds raised by the petitioner, and therefore,
claimed all the impugned orders involved herein should be interfered with and set aside.
Sri P.K. Rath, learned counsel for the Insurance Company, on the other hand, taking this Court to the findings of the Enquiry Officer, the findings of
the Disciplinary Authority, the First Appellate Authority and the Second Appellate Authority in his opposition to the claim of the petitioner submitted
that for the concurrent findings of fact by all the three Authorities involved in a disciplinary proceeding issue, there is no scope for interfering with any
of the impugned orders. Sri Rath, learned counsel further contended that looking to the concurrent findings on the facts holding the petitioner and the
2nd key holder responsible for loss of a sum of Rs.2,07,057.43p and the Authority having punished the petitioner only with penalty of Censure and
recovery of 50%, the punishment so awarded by the Disciplinary Authority against the petitioner appears to be very lenient
requiring no interference by this Court. Sri Rath, learned counsel referring to the enquiry report, the findings of the disciplinary authority also
contended that there is even otherwise also no merit in the claim of the petitioner.
Looking to the charge sheet, this Court finds, the petitioner faced the following charges :
“THAT on 15.05.04 at about 11.25 AM, you opened the safe as the holder of the Key No.1 for shifting of the Cash Boxes from the safe to the cash counter of
Bhadrak BO in presence of Shri NC Das, AAO, SR No.335025, the holder of the Key No.2 and one Daily Wager, Sri Subhas Nayak. You, on the above said date, did
not accompany the aforesaid daily wager all along the shifting of all the three cash boxes and plastic bag containing loose notes from the safe to the Cash Counter.
You, at the time of shifting of the third Cash Box and the plastic bag containing the loose notes, did not accompany the daily wager which led to the theft of the third
Cash Box containing cash amounting to Rs.2,07,057.43. Thus, you had shown gross negligence and lack of diligence in discharging your duties which caused
financial loss to the Corporation to the tune of Rs.2,07,057.43.â€
It also appears as per the petitioner’s own submission, petitioner was provided opportunity of showing cause at the time of submission of charge
sheet which he has also availed submitting his response vide Annexure-3.
So far as the enquiry is concerned, there is no allegation in the writ petition at all that petitioner has not been provided with opportunity of participation.
Further on the enquiry report being provided, petitioner was asked for submitting his response. In response to which, the petitioner also submitted a
response, vide Annexure-5. Before imposition of penalty, petitioner has been provided with an opportunity of showing cause, vide Annexure-6, to
which the petitioner responded vide Annexure-7. Reading all his submissions and the stand before the Enquiry Officer, it is observed that the petitioner
had the only stand that after opening of the Strong Room, the cash box and the packet containing loose notes were taken out, both were handed over
to the daily wager and he asked the daily wager to wait for him with the cash box and the packet till he completes the locking process but however
when the petitioner completed the locking process and turns back, he found the daily wager was missing with the cash box as well as the packet
containing loose notes. Further on attending cash counter he was told by the Cashier that the cash box did not reach him except the Cashier has been
handed over with the packet containing loose notes. In the enquiry, there is a clear finding that there is missing of cash to the tune of Rs.2,07,057.43
through the third cash box. The fact that petitioner did not accompany the daily wager to the cash box has also been established. Thus petitioner failed
in establishing that it is only the daily wager who should be held responsible for missing of the money. For the responsibility lying on the petitioner to
establish his case in the enquiry and he having failed to establish the same, further for the observation in the enquiry report having concurred by the
Disciplinary Authority then also by the First Appellate Authority and also the Second Appellate Authority, this Court finds, for involvement of
concurrent finding of facts by so many Authorities, this Court has no scope for interfering with such findings. Further looking to the nature of
allegation and holding the petitioner guilty on such serious allegation involving missing of huge cash, it is also a clear case of the employee failed to
maintain his integrity and responsibility during discharge of employment and there is establishment of a serious charge warranting no sympathy on such
person, particularly keeping in view the involvement of a financial Institution. This Court looking to the gravity of offence involved here and examining
the punishment imposed on the petitioner also finds for petitioner being punished with word of “Censure†and 50% recovery of amount stolen, the
Authorities themselves have taken a very lenient view requiring no further indulgence.
This Court here takes note of some judgments on Judicial Review involving Disciplinary orders:-
i) AIR 1967 SC 295 : (Barium Chemicals Ltd. and anr. Vs. Company Law Board and Others) - Law is fairly settled that if the action or decision remains perverse or is
such that no reasonable body or person, property in front of court come to, or has been arrived at by the authority misdirecting itself by adopting a wrong approach
or has been influenced by irrelevant or extraneous matters, the court would be justified in interfering with the same.
ii) AIR 1988 SC 1737 : (State of U.P. and others Vs. Renusagar Power Co. and others) - It is held that exercise of administrative power will be set aside if there is a
manifest error in the exercise of power or exercise of power is manifestly arbitrary. This decision has also been endorsed by Hon’ble apex Court in AIR 2003 SC
1843 : (Indian Railway Construction Co. Vs. Ajay Kumar)
iii) (1997) 3 SCC 657 : (Rae Bareli Kshetriya Gramin Bank Vs. Bhola Nath Singh and others) - Hon’ble apex Court has even gone to the extent saying the High Court
in proceedings u/A.226 of Constitution of India does not act as appellate authority and has only the jurisdiction to correct error of law or procedural error clearly to
manifest injustice or violation of natural justice.
iv) (2006) 5 SCC 673 : (State of U.P. Vs. Raj Kishore Yadav), wherein at paragraph-4 the Hon’ble apex Court held that the High Court has limited scope of
interference in the administrative action of the State in exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India, and therefore, the findings
recorded by the enquiry officer and the consequent order of punishment of dismissal from service should not be disturbed.
v) (2015) 3 SCC 101 : (General Manager (Operation), State Bank of India Vs. R. Periyasamy), wherein at paragrtaphs-9 and 12, the Hon’ble apex Court held as
follows:
“9. It is not really necessary to deal with the judgment of the learned Single Judge since that has merged with the judgment of the Division Bench. However, some observations are
necessary. The learned Single Judge committed an error in approaching the issue by asking whether the findings have been arrived on acceptable evidence or not and coming to the
conclusion that there was no acceptable evidence, and that in any case the evidence was not sufficient. In doing so, the learned Single Judge lost sight of the fact that the permissible
enquiry was whether there is no evidence on which the enquiry officer could have arrived at the findings or whether there was any perversity in the findings. Whether the evidence was
acceptable or not, was a wrong question, unless it raised a question of admissibility. Also, the learned Single Judge was not entitled to go into the question of the adequacy of evidence
and come to the conclusion that the evidence was not sufficient to hold the respondent guilty.
On the question of shortage of money, the Division Bench merely upheld the findings of the learned Single Judge that there was no clinching evidence in support of the charges.
The Division Bench approved the findings of the Single Judge that the inquiry report that the shortage of cash occurred only between 16.11.1985 and 05.04.1986, when the respondent
was a joint custodian, was based on surmise and conjecture. The Division Bench did not care to advert to the evidence. That evidence rightly relied on by the enquiry officer which
established that the shortage did occur between 16.11.1985 and 05.04.1986. In fact the inquiring officer has given cogent reasons for rendering the findings that the shortage could not
have occurred after 05.04.1986 upto the discovery of 15.04.1986, when two acting cashiers had functioned. Moreover, the observation that there is no clinching evidence in support of
the charges is another way of saying that the evidence is insufficient or inadequate, which is not permissible. It bears repetition that sufficiency or adequacy of evidence is not the
ground on which the findings of facts may be set- aside by the High Court under Article 226. The justification offered by the Division Bench that the learned Single Judge had to
undertake the exercise of analysing the findings of the enquiry officer because the appellants had deprived the respondent of his livelihood is wholly untenable. A transgression of
jurisdiction cannot be justified on the ground of consequences, as has been done. Moreover, the reliance by the Division Bench on Mathura Prasad Vs. Union of India & Ors.[12] is
entirely misplaced, since that case arose in an entirely different set of circumstances. We also find it difficult to understand the justification offered by the Division Bench that there
was no failure on the part of the respondent to observe utmost devotion to duty because the case was not one of misappropriation but only of a shortage of money. The Division
Bench has itself stated the main reason why its order cannot be upheld in the following words, ""on re-appreciation of the entire material placed on record, we do not find any reason to
interfere with the well considered and merited order passed by the learned Single Judge.
vi) (2015) 2 SCC 610 : (Union of India and others Vs. P. Gunasekaran), wherein at paragraph-12, the Hon’ble apex Court held as follows:
“12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even
the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In
disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of
India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority;
b. the enquiry is held according to procedure prescribed in that behalf; the
c. there is violation of the principles of natural justice in conducting the proceedings;
d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;
h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
i. the finding of fact is based on no evidence.â€
For the claim of the petitioner opposed to law of the land discussed hereinabove and for there involved a proven case of lose of money in a
Financial Institution, this Court finds, there is no substantial ground to interfere with either of the impugned orders. As a consequence, the writ petition
stands dismissed having no merit. For the dismissal of the writ petition, the interim order dated 30.11.2009, passed in Misc. Case No.15620 of 2009
stands vacated. In the circumstance, however there is no order as to cost.