Chief Executive Officer ... vs Virendra Pratap Pandey And Anr.
2023 Latest Caselaw 6144 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 2
 

 
Case :- SPECIAL APPEAL No. - 445 of 2021
 

 
Appellant :- Chief Executive Officer U.P.Khadi Gramudyog Board Lko And Anr.
 
Respondent :- Virendra Pratap Pandey And Anr.
 
Counsel for Appellant :- Pankaj Patel
 
Counsel for Respondent :- C.S.C.,Akhilesh Upadhyay,Sanjay Kumar Dwivedi
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Subhash Vidyarthi,J.

1. Heard Sri Pankaj Patel, learned counsel representing the appellants and Sri Akhilesh Upadhyay, learned counsel representing the respondents.

2. The appellants U.P. Khadi Evam Gramodyog Board, Lucknow and its Finance and Accounts Officer have filed the instant intra court appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules challenging the judgment and order dated 08.09.2021 passed by an Hon'ble Single Judge of this Court allowing Writ Petition No. 14884 (S/S) of 2019.

3. The aforesaid writ petition had been filed by the respondent no. 1 challenging a punishment order dated 14.03.2019 whereby a sum of Rs. 10.56 lakhs was ordered to be recovered from the amounts payable to the respondent no. 1 towards gratuity, leave encashment, pension/ arrears of pension.

4. Briefly stated, facts of the case are that while the respondent no. 1 was working as a clerk in U.P. Khadi Evam Gramodyog Board on 24.08.2015 he had given a complaint to the Secretary of the Board stating that Sri Harish Chandra Singh, Manager had wrongfully made several withdrawals from the account of the Board. Amongst other things, it was stated in the complaint that Sri Harish Chandra Singh had withdrawn a total sum of Rs. 24,80,000/- through ten cheques between the period 27.01.2003 and 18.05.2005.. On 21.09.2005, the Chief Account Inspector and Senior Account Inspector of the Board had submitted an audit report and on 24.09.2005, a First Information Report bearing Case Crime No. 300 of 2005, under Sections 467, 468, 471, 409, 420 IPC was lodged in Police Station Kotwali Nagar, Sultanpur against Sri Harish Chandra Singh. On 31.01.2006, a charge sheet was submitted in the aforesaid case against Sri Harish Chandra Singh.

5. On 23.02.2006, the respondent no. 1 was suspended and on 28.04.2006, a charge sheet was issued levelling two charges against him. The first charge was regarding conspiring with Sri Harish Chandra Singh, the then Manager in misappropriation of money by drawing cheques in the name of Sri Yogendra Prasad Mishra and the second charge was that in case the respondent no. 1 had taken proper care of the cheque book and had opposed misuse of the cheque book by the Manager, he could not have misappropriated such a huge amount and the fact that the respondent no. 1 gave information of the misappropriation with delay indicated that he had played an active role in the conspiracy hatched by Sri Harish Chandra Singh.

6. On 12.07.2006, Sri Mohd. Idris, Joint Chief Executive Officer/ Enquiry Officer submitted an enquiry report stating that the respondent no. 1 knew that the amount which was being withdrawn, was to be given to the beneficiaries of margin money and being custodian of the cheque-book he ought to have satisfied himself that the cheques were being drawn in favour of the beneficiaries. When the cheques were not being drawn in the name of the beneficiaries, the respondent no. 1 ought to have opposed it and brought this fact to the knowledge of the Chief Executive Officer and the Secretary of the Board. Failure of the respondent no. 1 to do so proved his complicity in conspiracy of the embezzlement.

7. On 30.11.2006, the Chief Executive Officer of the Board issued a show cause notice to the petitioner giving him an opportunity to say anything in addition to the explanation submitted to the Enquiry Officer and to produce any other evidence or witness etc. On 14.12.2006, the petitioner sent a reply to the show cause notice denying the charges.

8. On 03.03.2008, the Chief Executive Officer of the Board sent a notice asking the petitioner to show cause as to why he should not be removed from service for his involvement in embezzlement of Rs. 31.68 lakhs. The petitioner gave a reply to the aforesaid letter on 08.04.2008.

9. On 13.06.2008, the Chief Executive Officer passed an order stating that the disciplinary proceeding and criminal proceedings pending against the respondent no. 1 are based on the same set of facts and charges and, therefore, till decision of the criminal case, the departmental proceeding shall remain stayed. By means of the aforesaid order, the respondent no. 1 was reinstated in service with the condition that proceedings will be taken against him as per the decision taken in the criminal case.

10. Meanwhile, an enquiry was instituted against Sri Harish Chandra Singh, Manager (Gramodyog) and on 05.04.2010, the Finance Controller/ Enquiry Officer submitted a preliminary enquiry report, as a final enquiry report could not be prepared because the records were laying in police custody. Although the enquiry had been instituted against Sri Harish Chandra Singh only and not against the respondent no. 1 in respect of charge no. 1 regarding embezzlement of Rs. 5,95,000/-, the enquiry officer found that Sri Harish Chandra Singh was liable for half of the amount and for rest half of the amount, the respondent no. 1 and Sri Yogendra Prasad Misra were responsible. Regarding rest of the charges, report could not be submitted for want of records.

11. On 05.09.2013, a show cause notice was issued to the respondent no. 1 stating that as a liability has been fixed on him in the interim enquiry report dated 05.04.2010, he should give his statement. On 20.09.2013, the respondent no. 1 gave a reply to the aforesaid letter.

12. On 21.07.2014, Sri M.K. Bhatt, Chief Finance and Accounts Officer/ Enquiry Officer submitted a final report against Sri Harish Chandra Singh wherein the enquiry officer found Sri Harish Chandra Singh to be responsible for the entire embezzled amount, including the amount of Rs. 5,95,000/-, regarding which it was stated in the interim enquiry report that he was responsible for half of the amount and the respondent no. 1 and Sri Yogendra Prasad Misra were responsible for the rest half. On 06.12.2014, the Chief Executive Officer of the Board passed an order for recovery of Rs. 31,68,095/- from Sri Harish Chandra Singh.

13. On 08.06.2015, the Chief Executive Officer of the Board passed an order stating that the disciplinary proceedings against the respondent no. 1 had been stayed pending decision of the criminal case but later on it transpired that no criminal case was pending against respondent no. 1. Therefore, the disciplinary proceeding against the respondent no. 1 was restarted and Sri Hari Ram Singh, Deputy Chief Executive Officer was appointed as the Enquiry Officer.

14. On 26.06.2015, Sri Hari Ram Singh, Enquiry Officer sent a letter to the officer-in-charge (Personnel) of the Board stating that Sri Mohd. Idris, the then Joint Chief Executive Officer had already submitted an enquiry report on 12.07.2006 and that he was in agreement with the enquiry report.

15. On 30.03.2017, the Chief Executive Officer of the Board issued a notice to the respondent no. 1 asking him to show cause as to why 1/3rd of the embezzled amount of Rs. 31.68 lakhs, i.e. Rs. 10.56 lakhs, be not recovered from him.

16. Thereafter the Chief Executive Officer formed a three member committee for submitting a report and on 04.02.2019, the committee submitted a report wherein it was stated that by means of an order dated 11.12.2014, an amount of Rs. 31.68 lakhs was ordered to be recovered from Sri Harish Chandra Singh and no amount was recommended to be recovered from respondent no. 1. Thereafter, the Chief Executive Officer had passed an order for recovery of 1/3rd portion of Rs. 31.68 lakhs from three persons, including the respondent no. 1. Rs. 1,82,244/- was recovered from the salary of Sri Harish Chandra Singh and an order was passed for recovery of the balance amount of Rs. 30,80,293.17 from him. The personnel department had informed that Rs. 23,62,376 only could be recovered from the arrears of pension, arrears of family pension, gratuity and leave enchashment of Sri Harish Chandra Singh. Regarding respondent no. 1 the three member committee found that the explanation given by him was not acceptable and 1/3rd of the amount of Rs. 31.68 lakhs should be recovered from him also. Accordingly, on 14.03.2019 the Chief Executive Officer passed an order for making recovery of Rs. 10.56 lakhs from the amount of gratuity, leave encashment, pension/ arrears of pension payable to the respondent no. 1.

17. The respondent no. 1 challenged the recovery order by filing Writ Petition No. 14884 of 2019.

18. The Hon'ble Single Judge held that in the final enquiry report submitted in the matter of Sri Harish Chandra Singh, he had been found guilty for embezzlement of the entire amount and by means of the order dated 06.12.2014, the Chief Executive Officer of the Board had ordered for recovery of the entire embezzled amount from Sri Harish Chandra Singh. After submission of the aforesaid enquiry report and passing of the order dated 06.12.2014, there was no occasion for issuing a show cause notice dated 30.03.2017 to the respondent no. 1.

19. Assailing the aforesaid order, Sri Pankaj Patel, learned Standing Counsel has submitted that the enquiry report dated 21.07.2004 submitted by Sri M.K. Bhatt was not related to the respondent no. 1 and, therefore, he could not be benefited by the aforesaid enquiry report. He has submitted that in the enquiry report dated 12.07.2006 submitted by Sri Mohd. Idris, the respondent no. 1 was found guilty of being involved in the conspiracy hatched by Sri Harish Chandra Singh and the subsequent Enquiry Officer Sri Hari Ram Singh has expressed his agreement with the enquiry report of Sri Mohd. Idrish. He has further submitted that three member committee has also found the respondent no. 1 guilty and has recommended recovery of 1/3rd amount of Rs. 31.68 lakhs from respondent no. 1.

20. Per contra Sri Akhilesh Upadhyay, learned counsel for the respondent no. 1 has submitted that the report dated 04.02.2019 submitted by a three member committee was not an 'enquiry report' as the said committee did not hold any enquiry before submitting the report. Therefore, the respondent no. 1 cannot be held guilty on the basis of the aforesaid report.

21. We have considered the aforesaid facts and circumstances of the case and the submissions made by the learned counsel for the parties.

22. In the enquiry report dated 21.07.2014 submitted by Sri M.K. Bhatt, Chief Finance and Accounts Officer, a categorical finding was recorded that Sri Harish Chandra Singh was guilty for the entire embezzlement and the enquiry officer stated that a First Information Report of the embezzlement was lodged in police station Kotwali Nagar, Sultanpur. It is relevant to note that a charge sheet has been submitted in the aforesaid case against Sri Harish Chandra Singh. On 06.12.2014, the Chief Executive Officer of the Board had passed an order for making a recovery of 31,68,095/- from Sri Harish Chandra Singh. There is nothing on record to indicate that the aforesaid order has been challenged before any Court or Tribunal and that it has been modified. In such circumstances, passing of an order for making recovery of 1/3rd amount from the respondent no. 1 would result in modification of the order dated 06.12.2014, without the order being challenged by Sri Harish Chandra Singh and the same being modified by any Court or Tribunal. In the enquiry report dated 12.07.2006 submitted by Sri Mohd. Idris, the respondent no. 1 was not held guilty of having committed embezzlement of any amount; what the enquiry officer found was that the respondent no. 1 was also involved in the conspiracy hatched by Sri Harish Chandra Singh and it was Sri Harish Chandra Singh who had in fact made the embezzlement.

23. In view of the aforesaid discussion, we do not find any reason to interfere with the judgment and order dated 08.09.2014 passed by the Hon'ble Single Judge allowing the writ petition on the ground that after Sri Harish Chandra Singh had been held guilty of committing embezzlement and after an order dated 06.12.2014 had been passed for making recovery of the entire embezzled amount from Sri Harish Chandra Singh, there was no occasion for passing the impugned order against the respondent no. 1.

24. The special appeal lacks merit and the same is, hereby, dismissed.

(Subhash Vidyarthi, J.)        (Devendra Kumar Upadhyaya, J.)
 
Order Date :- 27.2.2023
 
Pradeep/-