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Judgment
I.P. Mukerji, J.—In this case, an accountant in the Indian Iron and Steel Company Limited (hereinafter "the company"), has been charge-sheeted and removed from service. I am convinced on perusal of the records that this accountant was thoroughly guilty of falsifying accounts, by which works contractors with the company got the benefit of extra payment. But, what is most disconcerting is that in investigating this kind of a financial misappropriation only this accountant who used to hold a clerical position has been charge-sheeted and dismissed from service. No other official was even asked to explain the defalcation, far less being charge-sheeted. If there was a financial misappropriation of Rs. 5,81,000/- there surely must have been other officials of the company involved to facilitate it. The Company is a subsidiary of Steel Authority of India Limited, a Government of India company. In a Government of India organisation, it is absolutely unbelievable that an accountant would falsify accounts, as a result of which, contractors would get an extra payment of Rs. 5,81,000/-, without verification by any other superior official employed by the company or by other departments of it. The writ petitioner was a head assistant of the accounts department. When the writ petitioner had falsified such records and even prepared the contractors'' bills for payment, those bills could not have been paid to the contractor unless they were verified by officials of the accounts department, the billing department and officials who were responsible for the work which the work contractors were carrying out. What is most surprising is that an enquiry was made only against this head assistant of the accounts department as a result of which he was dismissed from service.
As I have noted earlier, such falsification of accounts is established. It is also established that this head assistant had played his part in the falsification of the accounts. But when it is seen that a government organisation takes action only against this head assistant, without even initiating an enquiry against the others, considerable doubts, are raised in the mind of the court about the bonafides of such action taken. When this kind of a doubt is raised in the mind of the court, as has been raised in this case, the court should not use its power in equity to exonerate a person who is admittedly guilty. But the court will use its power in equity to interfere with the quantum of punishment that has been imposed, that is, the punishment of dismissal from service, which I propose to do in this order. If a thorough enquiry had been ordered by the company and all officials of the company responsible for preparation of bill, verifying the claims, and making payment of those claims were brought to justice by issuance of appropriate show cause notices or charge-sheets, asked to answer the charges therein, thereafter held guilty and if the writ petitioner was one of such persons, I would not have even interfered with the punishment imposed on him. In circumstances as above, when it is absolutely plain that a group of people was involved in such misappropriation and only one person has been removed from service, this order of dismissal from service smells of an action which victimizes one person, so that other persons can escape freely.
Now I turn to the facts in detail.
A communication was issued to the writ petitioner on 24th October 1997 by the Manager (Finance) to the following effect:
On scrutiny of Subsidiary Ledgers of 1995-96 & ''96 � 97 of Earnest Money/Security Deposit certain discrepancies/anomalies have been observed in the posting of contractors'' accounts the details of which are given in the statement enclosed herewith.
You being responsible for posting of the same in the Subsidiary Ledgers, are advised to explain in writing within 24 hours the reasons of such discrepancies/anomalies.
On 25th October 1997, the writ petitioner replied to the above accusation saying that the mistakes in the ledger were unintentional. On 12th September 1998 a charge-sheet-cum-suspension order was issued against the writ petitioner. The charge against him was that he made wrong postings in the ledgers as a result of which several contractors received excess refund of earnest/security money aggregating to Rs. 5,81,000/-.
The writ petitioner made interalia the following reply to the show cause notice.
Sir, I duly verified the applications of the contractors for receipt of earnest money/security deposit tallying with the subsidiary ledger maintained in our office and there is/was no anomaly whatsoever in the accomplishment of those jobs nor there was any anomaly in posting the said ledger in the matters of recording the actual deposit of Earnest money/security deposit of the contractors. Thereafter my immediate boss Shri P.K. Sahoo, Asstt. Manager (Finance) having duly checked those applications putting his signature thereon sent them to the Billing Deptt. (Bill Section) as per normal process. So, Sir, no fraud, malpractice, dishonesty manipulation whatsoever was resorted to neither by me nor my immediate Boss Shri P.K. Sahoo, Asstt. Manager, Finance or in other word our section and hence neither I nor our section was responsible for the excess payment made to the contractors.
...I committed the bonafide clerical error due to unintentional inadvertence which I have mentioned hereinabove.
Therefore, undisputedly the writ petitioner had admitted that there was falsification of accounts. Further, there is sufficient indication in the reply of the writ petitioner that this alleged ''posting'' by the writ petitioner in the ledger was subject to scrutiny and verification by his superiors and other departments.
After departmental proceedings he was dismissed from service.
From the said order of dismissal the writ petitioner had preferred an appeal to the Appellate Authority. It appears from the records that such appeal was not entertained by the Appellate Authority because it was delayed. A writ application was filed in this Court being C.R. No. 22016(W) of 1999. That writ was disposed of by K.J. Sengupta, J. on 7th June, 2005. The Appellate Authority, by the said order of our court, was directed to determine the appeal on the following guidelines:
The Appellate Authority shall examine first whether the Enquiry Officer has upon analysis of evidence with the standard of preponderance of probability come to a fact finding or not, (2) whether the reply given by the petitioner in advance has been considered upon application of mind by the Enquiry Officer or not, (3) whether the Disciplinary Authority has examined the aspect of the quantum of punishment in proportion to the alleged misconduct or not.
The Appellate Authority was the managing director of Indian Iron and Steel Company Limited. He recorded the following in his order dated 13th August, 2005, which is impugned here.
...I have gone through the charge-sheet and the contractor''s bills and it is observed that in all the 11(eleven) contractor''s bills as given in the charge-sheet there has been tampering with the figures and the bill amount has been enhanced for making of excess payment to the contractors.
I also observed that Sri Biswas was responsible for maintaining ledger of contractor''s security and earnest money and verifying the earnest money/security deposit to the contractors on the basis of claims. Sri Biswas had verified the bills in all the 11 (eleven) cases and was responsible for making wrong entries/postings in the subsidiary ledger for personal gain. I am not inclined to accept that the above mistake was unintentional as stated by Sri Biswas rather it was intentionally done in all the 11(eleven) cases for which the company had to make excess payment to the contractors. The mistake if committed can be for one or two cases but in the instant case it is observed that he has committed this mistake repeatedly in eleven different cases and therefore I am not inclined to accept that it was a mistake on the part of Sri Biswas.
Further, the following conclusions were arrived at:
I also find that Sri Biswas has stated in his appeal that he had committed an unintentional mistake and subsequently also passes on the blame to the Bill Section who verified the amount and prepared the voucher. I have carefully gone through the points of possibility of any insertion or tampering with the figures by changing the amount by persons other than the charge-sheeted person. I am not inclined to accept this excuse as the practice of posting/maintaining/verifying contractor''s ledger of security and earnest money was the primary responsibility of Head Asst. of A/cs. Department which Sri Biswas had failed to discharge. Such allegation at this stage by Sri Biswas is only an after thought.
I do not understand the remark in the decision about the writ petitioner "passing on the blame" to the bill section. There is no doubt in this case that the writ petitioner had tampered with the figures in the accounts. But he had specifically also stated in the written objection that his preparation of any bill was subject to scrutiny by the Finance Department.
That no official of the Finance Department or the concerned department of this company looking after works contract was called upon to explain this fraud, is the most unacceptable part of the whole enquiry process. On examination of this decision it is seen that the Appellate Authority had made up its mind to hold only the writ petitioner guilty and it proceeded accordingly.
There is a specific finding in the latter part of the decision that this excess refund of Rs. 5,81,000/- had been recovered from the respective contractors'' bills. The following finding is very important.
Although the excess amount of Rs. 5,81,000/- has been recovered from the contractor''s bills, this does not exonerate Sri Biswas of the grave misconduct committed by him.
Although the highest court of the State, being the High Court passed an order, on 7th June, 2005, observing that the punishment of dismissal from service was to be passed in very extreme cases and directed the Appellate Authority to consider the appeal on the two points mentioned in the judgment reproduced by me above, in my opinion, the Appellate Authority did not consider the issue of quantum of punishment at all. It had shown total disregard to the order of K.J. Sengupta, J. dated 7th June, 2005. In spite of the fact that it was held that the money had been recovered from the contractors and therefore no financial loss had been caused to the company, the Appellate Authority went on to pass the order of dismissal of service.
The absolute absence of any enquiry into the involvement of any other official, from the top to the bottom, makes this enquiry proceeding very suspect.
In the above circumstances, in my opinion, there is no point in sending back this matter to the Appellate Authority because this Appellate Authority has proved itself incapable of considering the case rationally or in accordance with law. Since the guilt of the petitioner is admitted, I do not set aside any finding. But for my reasons above, I set aside that part of the order dismissing the petitioner from service.
Instead of the punishment imposed, the punishment of "stoppage of increment, with cumulative effect" provided in para 26(ii)(a) of the Certified Standing Orders of Burnpur Works and Kulti Works of The Indian Iron & Steel Company Limited being the next highest punishment is to be substituted in the impugned order. I direct the company to immediately reinstate the writ petitioner in their services with the imposition of above punishment. He will not be deemed to be in service from the date of his dismissal till the date of his reinstatement. The writ application is allowed to the above extent.
Urgent certified photocopy of this judgment and order, if applied for, to be provided upon complying with all formalities.
Later
Mr. M.K. Lodh, learned Counsel appearing for the State prays for stay of operation of this order.
Considering the issues decided in this application and the view taken by me, there will be stay of operation of this order for a period of four weeks from date.