* HIGH COURT OF DELHI: NEW DELHI
Judgment reserved on: September 14, 2009
Judgment pronounced on: September 24, 2009
+ W.P. (C) No. 2928 of 1991
Y. N. Singh ... Petitioner
Through: Mr. Sumant Bhardwaj, Ms. Mridula
Ray Bhardwaj, Mr. Ajit Kumar
Gupta and Mrs. Archna Pathak
Dave, Advocates.
versus
National Seeds Corporation Ltd. & Others...Respondents
Through: Mr. Sudhir Kulshrestha, Advocate.
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported
in the Digest?
SUNIL GAUR, J.
*
1. In the year 1983, petitioner- Y.N. Singh was Deputy Seed Officer and was functioning as the Area Manager, National Seed Corporation (hereinafter referred to as the respondent-Corporation). The salary of the staff of National Seed Corporation, Siwan, Patna, for the month of March, 1983, was sent to the petitioner vide letter of 6th April, 1983. Later on while checking the Receipt and Payment Statement W.P. (C) No. 2928 of 1991 Page 1 and the Bank statement of Siwan Sub-Unit for the month of April & May, 1983, it was found that the salary of the Siwan Staff of respondent-Corporation for the month of March, 1983, was disbursed by the petitioner out of contingent advance and the petitioner had allegedly made a fictitious entry in the Receipt and Payment Statement of Siwan Sub- Unit regarding deposit of demand draft dated 4th April, 1983, of Rs.2,907.83p and petitioner was charged of misappropriation of the aforesaid amount by encashing the same on 12th April, 1983.
2. On 19th September, 1986, a Memorandum (Annexure P-
4) along with Statement of Imputation of Charges (Annexure- II) was served upon the petitioner, wherein following Charges were levelled against the petitioner:-
STATEMENT OF IMPUTATIONS OF MISCONDUCT IN SUPPORT OF ARTICLES OF CHARGE IN RESPECT OF SH.Y.N.SINGH, THE THEN AREA MANAGER, NSC, SIWAN.
Charge No.1.
1. While Sh. Y.N. Singh, DSO was working as Area Manager, Siwan Sub-Unit, a Demand Draft No. 526275 dt. 4.4.83 for Rs.2907.83 being the salary of NSC Siwan staff for the month of March, 83 was sent to him by Regional Office Patna vide letter No. P-III/Cash/NSC/82-83/10924 dated 6.4.83.The details of salary of Staff is indicated below:
1) Sh. Y.N. Singh, Dy. Seed Officer Rs. 1720.69
2) Sh. B.K. Tiwari, Jr. Store Keeper Rs. 732.40
W.P. (C) No. 2928 of 1991 Page 2
3) Sh. Baleshwar Singh, Watchman Rs. 454.74
________________
Rs.2907.83
2. The R&P Statement No. 2702 of Siwan Sub-Unit for April, 83 indicates that the amount of said DD (Rs.2907.83) was shown on 18.4.83 as receipt during the day meaning thereby that the amount of the DD in question was encashed. On the payment side of R&P it is also seen that the DD in question was again shown to have been deposited in the Bank. The bank statement of Siwan Sub-unit for April, 83 indicates that no such amount was deposited in the bank as no such credit was appearing in the bank statement for the month of April, 1983.
3. The SBI Patna in their letter No. Acctts/835 dated 25.8.84 intimated that the said DD was paid on 12.4.83 in the usual manner and not on 18.4.83 i.e. the date shown in the R&P cited above. Letter No. 29/69 dated 7.3.86 of Branch Manager, SBI, Siwan forwarding therewith a photocopy of paid DD No.526275 dated 4.4.83 for Rs.2907.83 also indicates that the said DD was encashed by Shri Y.N. Singh on 12.4.83.
4. Voucher No. VP 268 dated 27.4.83 indicates that the salary of the staff amounting to Rs.2907.83 indicates that the March, 83 was paid to the staff of NSC Siwan out of the amount of DD No.526275 dated 4.4.83 whereas a reference to R&P statement of Siwan sub-unit Number 2714 indicates that the salary of Siwan staff for the month of March,83 under Vr. No. 268 has been paid out of the contingent advance.
5. From the above it is seen that if Sh. Y.N. Singh has actually deposited the DD in question into the Bank on 18.4.83 as shown in the R&P statement No. 2702, the amount of DD should have been reflected on the Bank statement of SBI Siwan for the month of April, 83. This has not been the case. Secondly, if the DD in question was encashed and shown on the receipt side of R&P, as is evident from R&P Sl. No. 2702, the payment of the amount of W.P. (C) No. 2928 of 1991 Page 3 DD in question on the payment side of R&P statement should have been shown only once. By showing the payment twice once as a deposit in Bank at P.2702 of R&P for April, 83, and secondly as a contingent expenditure under Vr. No. 268 of R & P at page 2714, it is evident that Shri Y.N.Singh has misappropriated the amount of Rs.2907.83 by encashing the DD No.526275 on 12.4.83.
Charge No. II
1. The Accounts Officer and Regional Manager, NSC, Patna vide their letters No. P.III/(6)/Pat/82-83 dated 25.7.83 and P.III (Cash)/NSC/Petitioner/84-85 dated 31.8.84 respectively directed Sh. Y.N. Singh to intimate the where abouts of said DD as the amount of the same was not appearing in the bank statement for the month of April, 83. Shri Y.N. Singh did not send any reply/ comments/ explanations to any of the letters written to him by Accounts Officer and Regional Manager, NSC, Patna. Thus, he showed disobedience and utter disregard to the above official communications which is an act of gross insubordination.
From the above actions, Shri Y.N. Singh has shown himself as an officer of doubtful intergrity and has shown lack of devotion to duty and also acted in a manner quite unbecoming of Corporation employee. He has thus violated the provisions of Rules 3(I)(i), (ii) & (iii) of the CCS (Conduct) Rules, 1964, as made applicable to the employees of this Corporation.
3. Petitioner had sought time to submit his statement of defence and had asked for inspection of documents. According to the petitioner, the documents were not supplied to him. So, statement of defence was not filed by W.P. (C) No. 2928 of 1991 Page 4 the petitioner. Enquiry proceedings stood concluded with the Enquiry Report (Annexure P-11) holding that the charges stood proved against the petitioner. Vide letter of 29th May, 1990, (Annexure P-12) petitioner had submitted his objections to the Enquiry Report and vide Order of 13th June, 1990 (Annexure P-13), the Enquiring Authority had imposed the punishment of 'dismissal from service' upon the petitioner which was challenged by way of Appeal (Annexure- P-14). The appeal filed by the petitioner also stood dismissed by the Appellate Authority/ Board of Directors vide impugned Order of 14th June, 1991 (Annexure P-15).
4. The challenge to the impugned Order (Annexure- P-15) is on the ground that the petitioner was denied the reasonable opportunity to defend himself as vital documents i.e. bank deposit counter foil slips of 12th April, 1983, relating the demand draft in question, was neither supplied nor was permitted to be inspected, despite repeated written requests. The conduct of the Enquiring Authority to examine B.K. Tiwari on 19th March, 1990, i.e. after the conclusion of the enquiry, had been done behind the back of the petitioner. Order of the Appellate Authority is said to be non- speaking one, which purportedly violates Rule 27 (2) of CCS W.P. (C) No. 2928 of 1991 Page 5 (CCA) Rules, 1965. Petitioner claims that his whole case is based upon production of original demand draft and the original bank deposit counter foil slips of 12th April, 1983, and the Enquiring Authority did not summon this record and has illegally concluded that it was not warranted. Quashing of the impugned Order of 'dismissal from service' is sought by the petitioner on the ground that the principles of natural justice have been violated.
5. In the counter affidavit, respondent- Corporation has denied that the petitioner was actively involved in the activities of Technical Staff Association of the respondent- Corporation and ignorance has been expressed regarding petitioner having made any complaint against the former Chairman and Manager Director of the respondent- Corporation. The stand taken is that the petitioner had himself had encashed the demand draft and had illegally misappropriated it and there was no question of his handing over the demand draft to Mr. B.K. Tiwari, Junior Store Keeper, and of his depositing it and producing a counter foil in support thereof. According to the respondents, production of the original bank records had no relevance as the State Bank of India had communicated in writing that the amount of the demand draft in question had been paid to and was received W.P. (C) No. 2928 of 1991 Page 6 by the petitioner personally. Rest of the averments made in the writ petition stand denied.
6. Counsel for the parties have been heard. Submissions made have been considered and the decisions cited, have also been perused.
7. Petitioner's counsel had laid great stress on the contention that it is just not possible to encash a demand draft personally. Grievance of non supply of documents i.e. the original bank records has been made and it has been stated that documents relied upon were not in the list of documents and the impugned Order of the Appellate Authority is not a speaking one.
8. On the contrary, the submission of the respondent's counsel is that even if the statement of B.K. Tiwari is ignored, still there is ample evidence to support the finding of the Enquiry Officer and the original bank records were not required to be produced, as it stands established from the evidence on record that the petitioner had claimed conveyance charges for personally travelling from the office of the Corporation to the State Bank of India on 12th April, 1983, when the draft in question was encashed. It is pointed out that in certain banks the demand drafts are encashed W.P. (C) No. 2928 of 1991 Page 7 where the Officer Incharge signs the demand draft and puts his stamp on it. Thus, it is submitted that the plea of the petitioner of original pay-in-slip (counter foil) being not available is of no relevance, as from the records it is established that Mr. B.K. Tiwari had not claimed any conveyance charges on the day when the demand draft in question was encashed. It is stated that the Appellate Authority had applied its mind and there is no violation of principles of natural justice and so this writ deserves rejection.
9. Upon careful perusal of material on record, this court finds that the violation of principles of natural justice is writ large on the face of it, as the Order of the Appellate Authority is totally non speaking one, which violates Rule 27 (2) of the CCS (CCA) Rules, 1965, which mandates as under:-
(2). Self-contained, speaking and reasoned order to be passed and to issue over signature of prescribed Appellate Authority.
10. Appeal (Annexure P-14) filed by the petitioner before the Board of Directors/ Appellate Authority reveals that the Order of the Disciplinary Authority has been assailed on number of grounds and impugned Order (Annexure P-15) is totally non-speaking. It simply records that the Board of W.P. (C) No. 2928 of 1991 Page 8 Directors/ Appellate Authority after perusing all the connected documents and discussions rejected the appeal of the petitioner. A very pertinent and valid ground raised in the appeal is that Sh. B.K Tiwari was examined by the Enquiring Authority much after the closure of the Enquiry. It would be relevant to reproduce the specific ground taken by the petitioner in the Appeal (Annexure P-14), which is as follows:-
"It is further pertinent to note that the enquiry was closed on 13.2.1990 as per the enquiry report submitted by Shri MVV Subramanium (kindly refer to page 1 of the enquiry report) but it is surprising that shri B.K. Tiwari, whose name was not mentioned in the list of witnesses supplied to the appellant was examined by the Enquiry Officer on 19.3.1990 (name of the place of examination was not mentioned in the Enquiry Report) behind the back of the appellant and without affording any opportunity whatsoever to cross examine the said Shri B.K.Tiwari."
11. The contention of the respondent's counsel that even if statement of Sh. B.K. Tiwari is excluded from consideration, it will have no bearing on merits, cannot be appreciated in the present proceedings as the same was required to be dealt with by the Appellate Authority while passing the impugned Order. Normally speaking, Appellate Authority is not required to give separate reasons while concurring with the Disciplinary Authority, but it is required in the present case because the Enquiring Authority is said to have W.P. (C) No. 2928 of 1991 Page 9 recorded the statement of one B.K. Tiwari behind the back of the petitioner and that too after closing the enquiry proceedings. The need for clear and careful wording of the Appellate order confirming to Rule 27 (2) of CCS (CCA) Rules, has been emphasized in the Director - General P & T Orders. What has been emphasized is that it is necessary that all the points raised in appeal are summarized by the Appellate Authority in the Order and are also logically discussed to show how the grounds taken in the appeal are not tenable or acceptable. This was required to be done in view of the statutory mandate as contained in Rule 27 (2) of the CCS (CCA) Rules, 1965.
12. The contentions raised herein by the petitioner touching upon the merits of the case cannot be gone into by this Court in the writ proceedings. In this regard decisions reported in 'General Manager, Kisn Sahakari Chini Mills Ltd. Sultanpur, U.P. vs. Satrughan Nishad and Others' 2003 (8) SCC 639; 'Sub-Divisional Officer, Konch vs. Maharaj' 2003 (9) SCC 191; 'State of A.P. Vs. P.V. Hanumantha Rao (Dead) through Lrs. And another' 2003 (10) SCC 121 and 'State of U.P. and Ors. Vs. Raj Kishore Yadav & Another' 2006 (5) SCC 673 can be referred to with advantage. However, the grounds taken by the petitioner in the Appeal (Annexure P-
W.P. (C) No. 2928 of 1991 Page 10
14), are required to be answered by the Appellate Authority. In this view of this matter, impugned Order (Annexure P-15) cannot be sustained and is accordingly quashed. Personal hearing to the petitioner by the Appellate Authority is desirable as a major penalty has been imposed upon the petitioner.
13. In the light of the aforesaid, this petition is allowed with costs quantified at Rs. 20,000/-. Respondent No.3/ Appellate Authority is directed to hear the petitioner and to pass a speaking order on the Appeal (Annexure P-14) of the petitioner within a period of four months from the date, respondent No.3 is apprised of this Order. It goes without saying that the fate of the Appeal be communicated to the petitioner within two weeks of taking decision thereupon.
14. This petition stands disposed of in the terms, as aforesaid.
SUNIL GAUR, J.
September 24, 2009 rs W.P. (C) No. 2928 of 1991 Page 11