S.Raghuraman vs H.M.T.& Ors
2017 Latest Caselaw 4703 Bom

                                                                             wp 580.02.doc

Urmila Ingale

                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                ORDINARY ORIGINAL CIVIL JURISDICTION
                                WRIT PETITION NO. 580 OF 2002
                 Mr.S.Raghuraman
                 Indian Inhabitant,
                 having residential address
                 at Room No. 19, Krishna Palace,
                 Behind DNC School,
                 Dombivali (East),
                 Dist. Thane 421 201.                   .. Petitioner

                          Vs.

                     1. H.M.T. Limited
                 having its registered 
                 office at 36, Cunningham
                 Road, Bangalore 560 052.

                     2.The Executive Director,
                 M/s. H.M.T. Limited,
                 Watch Marketing Division,
                 H.M.T. Bhavan,
                 59, Bellary Road,
                 Bangalore 560 032.

                     3.The Deputy General Manager (Finance)
                 H.M.T.Limited,
                 Watch Business Group
                 H.M.T. Bhavan,
                 59, Bellary Road,
                 Bangalore 560 032.

                     4.The Union of India
                 Through the Secretary,
                 Ministry of Industry,
                 New Delhi.                           .. Respondents                         

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                                                                          wp 580.02.doc

 Mr.C.V. Lad,   for the Petitioner.
 Mr.P.M.Palshikar,   for Respondent No.1.

                                         CORAM : A.A.SAYED AND
                                                          M.S.KARNIK, JJ.
                                             
                               RESERVED ON  :  07th JULY, 2017
                          PRONOUNCED ON :   19th JULY, 2017

  JUDGMENT (PER  M.S.KARNIK, J) 

:

. The petitioner by this Petition filed under Article 226

of the Constitution of India challenges the order dated

31/05/1996 dismissing the petitioner from services of

respondents No.1 to 3 and the consequent order dated

26/06/1996 rejecting the Appeal of the petitioner. The

petitioner was appointed by the respondent No. 1 - Company

H.M.T. Ltd. as a Clerk 'B' in wage grade II and posted at its

Bombay office as per its appointment letter dated 04/03/1980.

The petitioner joined the Company on 01/04/1980 and was

working in Sales Counter. The petitioner was promoted with

effect from 01/04/1983 as a Clerk 'A' in wage grade III and

continued to work in Sales Counter. The petitioner was

promoted as a Senior Clerk in wage grade 'IV' with effect

01/04/1986. The petitioner was further promoted as an

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Assistant Superintendent in wage grade V with effect from

01/04/1989 and assigned duties in Sales and Accounts. The

petitioner was thereafter promoted as a Junior Officer

(Accounts) with effect from 01/07/1993 without any change in

original service conditions. By letter dated 18/03/1994, the

petitioner's pay on promotion as a Junior Officer (Accounts) was

fixed. It is the petitioner's contention that immediately after his

promotion as a Junior Officer (Accounts), the petitioner's

immediate senior and superior Mr.T.S.Kalika Mardhanan

(Regional Accounts Officer ) took voluntary retirement and

consequently the petitioner was left with no one to guide and

correct him in account matters. As the petitioner was recently

promoted in Accounts, the petitioner was not properly and fully

conversant with the methodology and procedural part of his

duties. It is the petitioner's case that certain group of officers

from Bangalore office of the respondent No.1 - Company was

having grudge over the top officers of the Bombay area probably

because they were of the view that certain Bombay officers were

spending a large amount of money on marketing and

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promotional programmes of the respondent No.1 - Company.

In this tussle, according to the petitioner he was made a

scapegoat.

2. Some time in the month of May 1995, the

confidential internal audit of petitioner's office was carried out

by Mr.R.P. Sanghavi - A.G.M. ( Internal Audit) behind the back

of the petitioner. The queries raised in the internal audit were

never addressed to the petitioner for his explanation as is the

practice. The petitioner was served with charge-sheet on

19/06/1995. The charges of falsification of the Company's

records, fraud, dishonesty in connection with the business and

property of the Company, charge of willful insubordination of

disobedience and negligence were levelled against him. The

details of the charges are mentioned in charge-sheet dated

19/06/1995.

3. It would be material to reproduce charges

mentioned in the charge-sheet.

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"It is reported that while you were working as Jr.Officer, Accounts at Khar Showroom, Bombay, you are alleged to have misused the amounts mentioned below :

You had issued two cheques for Rs.6,000/- and Rs.10,000/- bearing No. 663232 dt. 15.10.94 and 663219 dt. 6.10.94 respectively drawn on UCO Bank in the name of Shri Hariram and drawn the amount yourself.

2. You had detached and misused the TA vouchers submitted by Shri R. Jayaraman vide his claim for Rs.685.50 and preferred another claim by substituting 3 more vouchers and drawn an amount of Rs.795/- vide voucher No. 764 dt. 26.8.1984.

3. Out of Rs.4445/- said to have been paid to M/s.Jaihind Art Printers vide voucher No. 1099 dt. 30.10.94 has not been paid in full but you had paid only Rs.4000/- and the difference of Rs.445/- was drawn by yourself.

4. The payments made to M/s.Jaihind Art Printers, vide voucher Nos. furnished below has received by yourself.

             Bill No.  Date      Amount       Voucher               dt.
          
            2504          29.4.94       1572/-          491                 30.6.94

            2611           15.10.94    1243/-            660                  31.7.94

5. An amount of Rs.5000/- said to have been paid vide voucher No. 1041 to M/s. Cute Computers, Bombay was said to have been received and misappropriated by yourself.

6. An amount of Rs.2200/- said to have been paid to M/s.Air Tech vide voucher No. 1100 dt. 30.10.94 was not actually paid to them but alleged to have been drawn yourself and misappropriated.

7. An amount of Rs.29,676/- towards service week expenses was processed and paid without any supporting bills and vouchers.

8. Shri M.A. Pershad, DVM, had refunded an amount of Rs.2,700/- for adjusting the TA advance drawn by him on 20.1.1995 to appropriate the TA claim. This amount of Rs.2,700/- was alleged to have been temporarily misappropriated by you.

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9. An amount of Rs.25000/- was paid to M/s. A to Z Furnisher, Bombay vide Cheque No. 654290 dt. 19.04.94 without any prior approval or sanction which is unwarranted.

Further, it is also reported that you have processed and passed for payment the following TA/TE claims of Shri M.G.Mahurkar, the then DGM (W).

1. TE claim dt.14.4.94 for an amount of Rs.855/-.

2. TA claim dt. 11.10.94 for an amount of Rs.855/-.

3. TA claim dt.21.11.94 for an amount of Rs.998/-.

4. TE claim dt. 19.10.94 for Rs.998/-.

The said claims are processed and paid to the DGM (W) without prior approval/sanction by the competent authority."

4. The petitioner by reply dated 24/07/1995 denied

the charges levelled against him. The petitioner pointed out

that due to heavy workload of work of 3 showrooms along with

8 Time Art showrooms and regional accounting of Sales etc., it

was not possible to work single handedly and comply and

update all documents as per routine. The petitioner had only

the choice of doing his job as per priority. This resulted in the

postponement of updating of records in time. The petitioner

offered his point-wise explanation denying the charges.

5. The Disciplinary Authority did not find the

explanation satisfactory, therefore, by Memo dated 14 th

September 1995 appointed Mr.P. K.Soman, Assistant General

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Manager as Enquiry Officer to conduct enquiry in respect of the

charges levelled against the petitioner. The Enquiry Officer

conducted the enquiry on 28/10/1995. The Enquiry Officer

vide enquiry report dated 24/11/1995 held that except charges

No. 5 & 6, all allegations have been proved. The Enqiry Officer's

report was served on the petitioner whereupon the petitioner

submitted his representation by his letter dated 12/12/1995.

6. The Disciplinary Authority by the impugned

order dated 31/05/1996 dismissed the petitioner from services

of the Company with immediate effect. The petitioner's Appeal

against the order of dismissal was rejected by the Appellate

Authority by order dated 26/06/1996. Learned Counsel for the

petitioner assailed order of the dismissal and contended that the

enquiry conducted was in breach of principles of natural justice.

According to him, the enquiry was held only on 28/10/1995

and was completed within 2 hours on the same date. The

petitioner was not supplied with the relevant documents which

resulted in prejudice to the petitioner. In the submission of the

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learned Counsel for the petitioner it was the Presenting Officer

and not the Enquiry Officer who conducted and wrote the

enquiry proceedings. Even the petitioner's request for

documents and examination of witnesses was not recorded in

the enquiry proceedings.

7. Learned Counsel for the petitioner relied upon

following decisions of the Apex Court to contend that if no

documents are supplied to the delinquent along with the charge

sheet on the basis of which the charges were framed and if the

relevant documents on the basis of which findings are recorded

but not made available to the delinquent, the order of

punishment cannot be sustained in law.

i) Bilaspur Raipur Kshetriya Gramin Bank and anr. Vs. Madanlal Tandon (2015) 8 Supreme Court Cases 461.

ii) Roop Singh Negi Vs. Punjab National Bank and ors.

(2009) 2 Supreme Court Cases 570.

iii) Pepsu Road Transport Corporation Vs. Lachhman Dass Gupta and anr. (2001) 9 Supreme Court Cases 523.

8. Learned Counsel for the respondents on the other

hand contends that the petitioner being an Accountant was

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expected to properly account the payments made. In fact the

charges levelled against the petitioner are serious in as much as

the same relate to the petitioner himself using the amounts

meant to be paid to others. According to the learned Counsel,

the petitioner has been provided with full opportunity and in

fact during the course of enquiry, the petitioner had admitted

some of the charges & procedural lapses on his part. The

admission of the petitioner by itself is sufficient to warrant a

dismissal. Learned Counsel for the respondents argued that the

Enquiry Officer on the basis of the material on record has come

to the conclusion that the charges levelled against the petitioner

except charges No.5 & 6 are proved and therefore findings

recorded by the Enquiry Officer cannot be said to be perverse so

as to warrant interference.

9. Having considered the submissions made by the learned

Counsel, we are of the view that the impugned orders passed by

the respondents call for no interference. We have gone through

the proceedings of the enquiry and the enquiry report. Insofar

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as the first charge is concerned, the same relates to issuance of

bearer cheques of Rs.6,000/- and Rs.10,000/-in favour of Shri

Hariram which the petitioner encashed the same on his behalf

but did not hand over cash to Shri Hariram. The Enquiry

Officer has taken into consideration the letter dated

15/05/1995 (Exhibit 1) written by Shri Hariram denying receipt

of the payment. The Enquiry Officer took into consideration

that payment voucher does not bear signature of Shri Hariram

acknowledging receipt of payment. In these circumstances the

Enquiry Officer was of the view that the petitioner's contention

that he handed over the money in good faith cannot be

accepted. The Enquiry Officer thus held the first charge as

proved.

10. The Enquiry Officer also came to conclusion that the

taxi vouchers for Rs.350/- and Rs.300/- submitted by Shri

R.Jayaraman along with his T.A. Bill (Exhibit 3) were detached

by the petitioner and thereafter he clubbed 3 more vouchers of

Rs.125/-, Rs.5.50/- and Rs.15/- totaling Rs.795.50/- which was

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misappropriated. The cash payment voucher for Rs.795.50 was

made in the name of R.Jayaraman. The petitioner agreed that

taxi vouchers of Rs.350/- and Rs.300/- were detached by him

and through oversight 3 more vouchers were clubbed. The

Enquiry Officer recorded the finding that as the voucher of

Rs.795.50 does not bear signature of Shri R.Jayaraman

acknowledging receipt of Rs.795.50/-, the said amount of

Rs.795.50 was misappropriated by the petitioner.

11. Likewise the petitioner paid Rs.4000/-by cash to

M/s.Jaihind Art Printers but prepared and accounted cash

payment voucher for Rs.4445/-. The Enquiry Officer took into

consideration the letter of M/s.Jaihind Art Printers stating that

they have received Rs.4,000/-. On the cash payment voucher

(Exhibit 5/6), signature of M/s.Jaihind Art Printers is not seen

and the petitioner did not produce any documentary evidence to

prove that he indeed paid Rs.4445/- to M/s.Jaihind Art Printers.

In these circumstances, the Enquiry Officer came to the

conclusion that the difference amount of Rs.445/- was

misappropriated.

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12. Furthermore, even as regards the cash payment

vouchers for Rs.1572/- and Rs.1243/- in favour of M/s.Jaihind

Art Printers, they denied the receipt of above payments. The

documentary evidence in the form of cash payment voucher of

Rs.1572/-(Exhibit - 6), Bill No. 2611 dated 15/10/1994

(Exhibit 7) and part of page 49 of Cash Book No.2 (Exhibit 8)

wherein cash payment of Rs.1243/- has been accounted is a part

of record. The Enquiry Officer has recorded a finding that

Exhibit 6 does not bear the signature of the receiving party and

voucher was not traceable in the showroom and therefore,

concluded that the amounts of Rs.1,577/- and Rs.1,743/- were

misappropriated by the petitioner.

13. Even in respect of an amount of Rs.5,000/- which

was said to have been paid to M/s. Cute Computer Forms Pvt.

Ltd., the Company had sent a letter dated 10/05/1995 denying

the receipt of the payment. The petitioner, however, produced

stamped receipt dated 19/10/1994 on the party's letterhead

confirming receipt of the payment. The Enquiry Officer found

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that the said receipt was not produced during the investigation

and therefore it is apparent that payment has been made

subsequently and predated receipt obtained from the party.

Insofar as this charge is concerned, the Enquiry Officer did not

find the charge as proved.

14. Even insofar as the charge that an amount of

Rs.19676/- towards service week expenses, the Enquiry Officer

concluded that the same was processed without any supporting

bills and vouchers. The said amount as per the findings of the

Enquiry Officer towards service expenses were paid without

proper bills and vouchers. The petitioner agreed that the

payments have been made without proper documents and

vouchers.

15. In respect of the charge that the petitioner has

temporarily misappropriated an amount of Rs. 2700/- which

was paid to him Shri M.A.Pershad DVM for adjusting T.A.

advance drawn by him, the petitioner agreed that amount was

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received by him sometime in the last week of January 1995 and

he did not issue receipt on the same day. Instead amount was

kept separately in the drawer of his table. The Enquiry Officer

took into consideration the request for demand draft of

Rs.2700/- through State Bank of India dated 15/04/1995 to

prove that amount was accounted for only on that day. In this

view of the matter, the Enquiry Officer held that the charge of

temporarily misappropriation of Rs.2700/- is proved.

16. As regards payment of amount of Rs.25,000/- to

M/s. A to Z Furnishers without prior approval or sanction, the

petitioner stated that the same was paid on oral instructions of

the then DGM (W) and therefore, he did not have proper

approval or sanction.

17. The petitioner has taken a stand that his wife has

been suffering from Cancer for about a year at the relevant time

and therefore he was under great mental tension. He had to

undertake the entire account work after V.R.S. of the Deputy

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Manager Accounts and therefore, did not have any immediate

superior in Accounts Department who could guide and correct

him.

18. The law is well settled that this Court cannot

interfere under Article 226 of the Constitution of India with the

findings of the Enquiry Officer unless they are perverse nor can

the evidence be appreciated as if this Court is an Appellate

forum. We are not inclined to accept the contention of the

learned Counsel for the petitioner that any prejudice is caused

to him by non-supply of the documents. We find that during the

course of the enquiry, the petitioner has admitted to some of the

charges and in fact accepted that he has not followed the proper

procedure while making payments or processing T.E. claims.

Based on the material on record, the Enquiry Officer has come

to the conclusion that the charges levelled against the petitioner

are proved except charges No. 5 & 6. We do not find any

infirmity with the findings recorded by the Enquiry Officer. In

our opinion, the findings of the Enquiry Officer satisfies the test

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of preponderance of probabilities expected in disciplinary

proceedings.

19. The petitioner is an Accountant and therefore,

working as an Assistant Superintendent with effect from

01/04/1989 and assigned duties in Sales and Accounts and was

promoted as Junior Officer (Accounts) with effect from

01/07/1993. In this light of the matter, we do not feel that the

punishment imposed on the petitioner is shockingly

disproportionate to the misconduct proved. We are therefore

not inclined to interfere with the impugned orders.

20. Learned Counsel for the respondents has however

indicated that if an application is made by the petitioner

claiming his terminal benefits i.e. provident fund, gratuity,

Earned Leave encashment, 1992 pay revision arrears, the same

would be cleared notwithstanding the order of dismissal. The

petitioner is at a liberty to make an application to the

respondents for terminal benefits as mentioned above within a

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period of 4 weeks from today and if such application is made,

terminal dues be paid by the respondents to the petitioner

within a period of 6 weeks from the date of receipt of

application after adjusting the amount of Rs.20,055/- which is

to be recovered from the petitioner. Hence, the following order.

                               O R D E R

 i)      Writ Petition is dismissed.


 ii)     The   petitioner   may   make   an   application   to   the  

respondents for terminal dues within a period of 4 weeks from today. Upon receipt of the application, the respondents to pay to the petitioner the terminal dues i.e. provident fund, gratuity, Earned Leave encashment and 1992 pay revision arrears after adjusting the amount of Rs.20,055/- which is to be recovered from the petitioner within a period of 6 weeks from the date of the receipt of the application.

21. Subject to above, Rule is discharged with no order as

to costs.

 (M.S.KARNIK, J.)                                             (A.A.SAYED, J.)