Bombay High Court
Vishwanath Bhivaji Kudale vs The Chairman Maharashtra State ... on 17 January, 2025
2025:BHC-AS:2173
Neeta Sawant WP-2711-2006-JR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2711 OF 2006
Shri. Vishwanath Bhivaji Kudale ...Petitioner
: Versus
1. The Chariman, Maharashtra State
Electricity Board.
2. The Accounts Member, Maharashtra
State Electricity Board.
3. Director of Accounts, Maharashtra
State Electricity Board.
4. Chief Engineer, Maharashtra Statement
Electricity Board, Pune Urban Circle.
5. Joint Chief Accounts Officer, Maharashtra
State Electricity Board, Pune Urban Circle.
6. Accounts Officer (Cash). Maharashtra State
Electricity Board, Pune Urban Circle.
7. Divisional Accountant (Cash) Maharashtra
State Electricity Board, Pune Urban Circle
8. Assistant Accountant Cash, Maharashtra.
State Electricity Board, Pune Urban Circle
9. Controller of Vehicles, Pune, Maharashtra
State Electricity Board, Pune Zone. .....Respondents
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__________________
Mr. Sanjeev J. Rairkar i/by. Mr. S.A. Rajeshirke, Mr. Rahul Vijaymane and Mr.
Shubham Vasekar, for the Petitioner.
Mrs. A.R.S. Baxi, for Respondent Nos.1 to 9.
___________________
CORAM : SANDEEP V. MARNE, J.
Judgment Reserved on : 9 January 2025.
Judgment Pronounced on : 17 January 2025.
JUDGMENT :
1) Petitioner, an ex-employee of the then Maharashtra State
Electricity Board (MSEB) has filed this petition challenging the order dated
17 April 2004 passed by the Assistant Labour Commissioner and
Conciliation Officer, Mumbai granting approval to order dated 31 July 2001
dismissing him from services.
2) Briefly stated, facts of the case are that Petitioner was
appointed on the post of Lower Division Clerk with the erstwhile MSEB on
19 July 1977. He was promoted to the post of Upper Division Clerk on
31 July 1980. He was posted as Cashier at Padmavati Bill Centre in Pune
Urban Circle. He was placed under suspension by order dated
22 January 1999 on the ground of commission of serious misconduct. On
4 February 1999, police complaint was lodged with Sahakarnagar Police
Station, Pune against the Petitioner alleging misappropriation of amount of
Rs.6,23,660/- by him during the period from 29 April 1998 to
23 December 1998 while accepting cash amounts from consumers. On
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19 January 1999, Petitioner gave voluntary statement admitting the delay in
depositing of some of the amounts and agreed to refund any amount which
was found to be in deficit in a reasonable time. The Petitioner also
expressed remorse by admitting the mistakes committed by him. On
21 January 1999, he deposited amount of Rs.20,000/- with the Respondents
and sought further time to deposit the balance amount. In a similar
manner, he wrote letters dated 28 January 1999 and 3 February 1999
depositing further amounts and showing willingness to deposit the balance
amount with the Respondents. His suspension was revoked on
16 October 1999 and he was transferred and posted to another office to
work as Upper Division Clerk.
3) Petitioner was served with chargesheet under the provisions of
Regulation 90 of the Employee Service Regulations, 1995 (Regulations) on 1
June 2001 which was termed as 'concise chargesheet'. It was alleged in the
chargesheet that Petitioner committed misappropriation of several amounts
while working as a Cashier in Padmavati Bill Payment Centre totally
amounting to Rs.5,89,919/- and penalty of dismissal was proposed.
Petitioner was called upon to state as to whether he admitted the charges,
whether the proposed penalty of dismissal from service under the
provisions of Regulation 90 should be imposed and whether he had any
other explanation. Petitioner submitted his reply dated 11 June 2001
denying the charges and requested for conduct of enquiry into the charges.
After receipt of Petitioner's representation, the Disciplinary Authority
proceeded to pass order dated 21 July 2001 dismissing the Petitioner from
service. According to the Petitioner, at the time of his dismissal, a dispute
was pending before the Assistant Labour Commissioner and Consolidation
Officer, Mumbai and the Chief Industrial Relations Officer had issued
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Circular dated 4 October 1994 directing that under Section 33(2)(b) of the
Industrial Disputes Act, 1947 (I. D. Act) conditions of services of the
employees were to remain unchanged and while passing an order of
discharge or dismissal, provisions of Section 33(2)(b) of the I.D. Act would
follow. Therefore Respondents filed application before the Assistant Labour
Commissioner and Conciliation Officer seeking confirmation of the
dismissal order under the provisions of Section 32(2)(b) of the I.D. Act.
Petitioner filed his reply before the Assistant Labour Commissioner on
3 November 2001 opposing grant of approval to the dismissal order. The
Assistant Labour Commissioner and Conciliation Officer granted approval
to the dismissal order of the Petitioner on 17 April 2004.
4) In the meantime, Petitioner has preferred First Appeal dated
11 September 2001 to the Accounts Manager. The First Appeal preferred by
the Petitioner came to be dismissed by order dated 25 January 2002.
Petitioner preferred Second Appeal before the Chairman of the
Respondent-Board on 15 February 2002. The Appeal came to be dismissed
by the second Appellate Authority by order dated 9 April 2002.
5) The Petitioner has filed the present petition challenging the
approval order dated 17 April 2004. By order dated 29 June 2006, this Court
admitted the petition. The Respondents have filed Affidavit in Reply
opposing the petition. The petition is called out for final hearing.
6) Mr. Rairkar, the learned counsel appearing for the Petitioner
would submit that the impugned dismissal order of the Petitioner is ex-
facie illegal and liable to be set aside on the ground of failure to conduct
any enquiry to prove the charges levelled in the chargesheet dated
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1 June 2001. He would submit that the chargesheet dated 1 June 2001
contained three elements of (i) allegations of misconduct (ii) enquiry report
and (iii) decision of dismissal. He would submit that in the chargesheet,
Petitioner was called upon to state whether he desired conduct of any
enquiry and that the Petitioner had expressly desired for conduct of
enquiry. However, the Disciplinary Authority proceeded to straightaway
dismiss the Petitioner from services.
7) Mr. Rairkar would further submit that the dismissal order
appears to have been passed by exercising powers under the provisions of
Regulation 90 of the Regulations and this Court has repeatedly held that
employees of Respondent-Board cannot be dismissed from service without
conduct of enquiry by having recourse to the provisions of Regulation 90.
In support, he would rely upon judgment of Division Bench of this Court in
Sudhakar Shankar Chapke Versus. The Maharashtra State Electricity Distribution
Company Limited & Anr.1. He would further submit that the Petitioner has
not admitted the charges after service of the chargesheet and that therefore
the conduct of enquiry to prove the charges was necessary. He would
therefore submit that the ratio of judgment of this Court in Employees' State
Insurance Corporation, New Delhi and others Versus. A. V. Tungare and others 2
would not apply to the facts of the present case. That only in exceptional
cases, where the employee admits the charge after receipt of chargesheet
that the enquiry can be dispensed with. In the present case, there is no
admission of charge on the part of the Petitioner, who specifically denied
the allegations levelled in the chargesheet by his reply dated 11 June 2001.
He would submit that the correspondence made prior to issuance of
chargesheet cannot be construed as admission on the charge. That in any
2013(1) ALL MR 564
2014(5) Mh.L.J. 219
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case, mere willingness expressed by the Petitioner to deposit certain
amounts, on account of registration of criminal cases against him, cannot be
construed as an admission of charge of misappropriation. He would submit
that Petitioner has not committed the misconduct of misappropriation and
has been erroneously dismissed from service by adopting a short cut
method under Regulation 90, since the Respondents did not have sufficient
material to prove the charges. That there is considerable delay in initiation
of disciplinary proceedings. Though the misconduct was allegedly detected
in January 1999, the chargesheet was issued 2 and half years later on
1 June 2001 and therefore it was all the more necessary that a proper
enquiry was conducted to prove the charges levelled against them. He
would submit that the Assistant Labour Commissioner and Conciliation
Officer failed to apply his mind to the above aspects and mechanically
approved the dismissal order without recording any reasons. He would
therefore submit that both the dismissal order as well as the approval order
are liable to be set aside.
8) The petition is opposed by Mrs. Baxi, the learned counsel
appearing for Respondent Nos.1 to 9. She would submit that the Petitioner
has rightly been dismissed from service on account of admission of
allegations of misappropriation by him. She would take me through all the
letters written by the Petitioner specifically admitting misappropriation of
various amounts by him and showing willingness to refund the said
amount. She would submit that except the amount of Rs.30,000/-,
Petitioner failed to refund the balance amount thereby causing huge losses
to the Respondent-Board. That while being posted as a Cashier on Bill
Payment Centre, Petitioner deployed various modalities for temporary as
well as permanent misappropriation of amounts received from the
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customers. All those modalities adopted by the Petitioner are disclosed and
by him in various letters sent prior to issuance of chargesheet. That since
the case involves admission on the part of the Petitioner about commission
of misconduct of misappropriation, there was no point in holding any full-
fledged enquiry against him. That therefore summary proceedings under
Section 90 of the Regulations was rightly initiated by them on the grounds
of availability of obvious evidence demonstrating commission of
misconduct, as well as grave nature of charges levelled against him. That at
the time when dismissal order was passed, no Court had held Regulation
90 to be illegal and therefore the Respondent-Board has rightly exercised
power of summary enquiry under Regulation 90 for dismissal of the
Respondent from service. That the dismissal was effected after grant of full
opportunity of hearing to the Petitioner. She would take me through the
complaints filed by the consumers in support of her contention of
commission of misconduct of misappropriation by the Petitioner. That
though no dispute was pending before the Assistant Labour Commissioner
and though provisions of Section 33(2)(b) did not apply at the relevant
time, Respondent-Board still secured approval of the Assistant Labour
Commissioner to the dismissal order. She would therefore pray for
dismissal of the Petitioner.
9) Rival contentions of the parties now fall for my consideration.
10) While being posted as Cashier at Electricity Bill Payment
Centre in Pune, Petitioner was accused of committing misappropriation of
amounts after receipt of several complaints against him where the
customers who had paid electricity charges were not given due credit in
their accounts. After receipt of repeated complaints, Respondents suspected
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the Petitioner of having misappropriated the said amount and accordingly
placed him under suspension by order dated 22 January 1999. Before
placing him under suspension, Petitioner gave voluntary statement dated
19 January 1999 virtually admitting misappropriation by him. In his
voluntary statement dated 19 January 1999, he admitted having committed
his mistakes and dishonesty. He submitted that the mistakes committed by
him were of three kinds (i) late deposit of amounts received from customers
in the accounts of the Respondent-Board, (ii) non-availability of details of
some of the accounts allegedly deposited by him and (iii) cancellation of
some of the receipts.
11) So far as the first nature of misconduct is concerned, he
admitted that he had received amount against receipt no. 4344 on
22 May 1998 but deposited the said amount in the accounts of the Board on
12 June 1998. He admitted that such course of action of temporary
misappropriation of amounts was adopted by him especially with regard to
the customers who were late in paying the bills. He accordingly showed
willingness to deposit the entire deficit amount with the Respondent-
Board. It appears that complaint was lodged against the Petitioner on
4 June 1999 with the concerned Police Station. Petitioner thereafter
deposited amount of Rs.20,000/- on 21 January 1999 and sought time to
deposit the balance amount. By another letter dated 28 January 1999,
Petitioner once again agreed to pay the balance amount to the Respondent-
Board. Lastly, he submitted one more letter on 3 February 1999 submitting
that the maximum amount paid by him to the Board was Rs.3,70,000/- and
sought permission to deposit amount of Rs.10,000/- and to deposit balance
amount within reasonable time.
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12) Letters dated 19 January 1999, 21 January 1999, 28 January 1999
and 3 February 1999 contain express admissions on the part of the
Petitioner that he actually misappropriated the amounts while working as
Cashier at Electricity Bill Payment Centre.
13) The Respondents did not immediately issue chargesheet to the
Petitioner possibly on account of Petitioner making attempts to refund the
misappropriated amount. The chargesheet was ultimately issued to the
Petitioner on 1 June 2001. The chargesheet was termed as 'concise
chargesheet' and alleged misappropriation of amount of approximately
Rs.5,89,919/-. The entire modus-operandi adopted by the Petitioner was
indicated in the chargesheet. The chargesheet also referred to deposit of
Rs.30,000/- by the Petitioner out of the misappropriated amount and
alleged that in respect of the balance amount of Rs.5,89,919/-, the
Respondent-Board suffered losses in addition to loss of reputation. The
chargesheet referred to the provisions of Regulation 90 of the Regulations
and the penalty of dismissal from service was proposed in the chargesheet.
Petitioner was called upon to state as to whether he admitted the charges,
why proposed penalty should not be imposed and whether he had any
other explanation. In response to the chargesheet, Petitioner submitted
representation dated 11 June 2001 denying the charges levelled in the
chargesheet and urging the Respondents not to impose the proposed
penalty. In his reply, he stated that the irregularities of remittance were
made good subsequently and therefore no loss was sustained by the Board.
He has also referred to the willingness shown by him to deposit any
shortfall amount and once again showed willingness to refund the shortfall
amount to the Board.
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14) Respondents invoked the provisions of Regulation 90 of the
Regulations which at the relevant time provided thus:
90. SUMMARY PROCEEDINGS
The Competent Authority may hold summary proceedings in case,
(a) where the employee is caught red-handed having committed or while
committing an act of misconduct,
(b) Where there is obvious evidence of the act of misconduct have been
committed or,
(c) where the misconduct or misbehavior is considered too grave and
convincing to warrant or justify the normal procedure to be followed.
(d) where having regard to the surrounding circumstances and the gravity
of offence for which the employee is convicted in a court of criminal law,
Competent Authority is of the opinion that summary proceedings are
appropriate for deciding any punishment including dismissal or removal.
Without following the procedure prescribed in Service Regulation 88 and
take a decision on the evidence available after charge-sheeting the
employee concerned, as prescribed in Annexure 3 and after giving him an
opportunity to make a statement. The summary decision may be effective
forthwith unless stayed by the Appellate Authority.
15) It must be observed at the very outset that an employer cannot
be granted unbridled power of punishing an employee without holding
any enquiry especially in respect of the major penalties of dismissal or
removal from service. Regulation 90 which applied at the relevant time
conferred powers on Competent Authority to hold summary proceedings
in the four eventualities :
(i) being caught red handed while committing misconduct,
(ii) availability of obvious evidence of commission of misconduct,
(iii) the misconduct or misbehavior is considered as 'too grave' and
(iv) where the employee is convicted in a court of criminal law.
16) Thus, Regulation 90 is an exception to the normal provision of
Regulation 88 which dealt with the procedure for dealing with the acts of
misconduct. In my view, regardless of nature of charge, it would be too
dangerous to permit the employer to straightaway dismiss an employee
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without holding an enquiry and without affording an opportunity of
defence to the delinquent employee. Regulation 90 of the Regulations has
been aside by this Court.
17) Mr. Rairkar has relied upon judgment of Division Bench of this
Court in Sudhakar Shankar Chapke (supra) in which the Division Bench has
referred to several decisions rendered by this Court in past and has held in
paras-5 and 6 as under :
5) We have heard the learned Counsel for the rival parties at length. We
have also gone through the decisions cited before us. At the outset the
action taken by the respondents under Regulation No.90, namely, of
summary nature without holding a regular departmental enquiry cannot
be countenanced. Perusal of the record shows that no evidence was
produced either for supporting the charges in the show cause notice under
Regulation No.90 or for affording an opportunity of hearing to the
petitioner in such a serious case of charge of acceptance of bribe amount of
Rs.50,000/- from a Contractor and following the ratio laid down by this
Court in the case of Vasant Raghunath Tupekar [2007 (1) ALL MR 524]
(cited supra), we hold that Regulation No.90 could not have been taken
recourse to in the present case also. We, therefore, concur with the
judgment in the case of Vasant Raghunath Tupekar [2007 (1) ALL MR 524]
(cited supra), on the said question of law about adoption of procedure of
summary nature under Regulation No.90 and hold that regular procedure
of departmental enquiry under Regulation No.88 was required to be
undertaken.
6) In the case of Vasant Raghunath Tupekar [2007 (1) ALL MR 524] (cited
supra), the charge was that because of negligence of the petitioner in that
case in performing his duties, MSEB suffered a revenue loss of
Rs.16,35,466/-. The charge did not relate to acceptance of bribe. The Court
granted the relief by quashing the order dated 12/3/2001 by which he was
removed from service.
In the case of Dhanaykumar Chitriappa Bodale [2010 (4) ALL MR
337] (cited supra), the charge against the petitioner in that case was that he
was guilty of causing loss of Rs.2,66,121/- to the Company because of his
acts of dereliction of duties. The Court held that the summary enquiry
under Regulation No.90 was not justified and set aside the punishment
order.
In the case of Ramesh s/o Rangnathrao Sonawane, [2012 (3) ALL
MR 78] (cited supra), the petitioner therein was prosecuted under the
provisions of Prevention of Corruption Act so also in the departmental
proceedings of summary nature under Regulation No.90 and he was
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acquitted in the trial by the Special Court and, therefore, summary enquiry
was found to be ill advised. The Single Judge observed that it was not
necessary to decide whether Regulation No.90 that is of summary nature
would be applicable or whether employer ought to have resorted to
Regulation No.88. Relying on the decision of the Apex Court in the case of
G.M. Tank vs. State of Gujarat and another (2006(5) SCC 446), the learned
Single Judge held the order of dismissal to be illegal. The said judgment of
the learned Single Judge was confirmed by the Division Bench in Letters
Patent Appeal St. No.3035/2012 on 14/2/2012.
In the case of Vijay s/o Pandurang Jogi (cited supra), Division Bench
of Aurangabad Bench of Bombay High Court was dealing with the case of
the petitioner, who had accepted the bribe amount of Rs.10,000/- and the
proceedings of special trial resulted in acquittal of the petitioner in that
case. He was acquitted on the ground that the sanction accorded was not
legal and proper. He was also proceeded summarily under Regulation No.
90, which was found to be not the correct action and consequently, the
Court set aside the order of dismissal from service.
18) However, in Sudhakar Shankar Chapke while setting aside the
order of removal, this Court granted opportunity to the Respondent-Board
to conduct enquiry into the misconduct by following the decision of the
Apex Court in Managing Director, ECIL, Hyderabad and others Versus. B.
Karunakar (II)3. The issue for consideration is whether the order dismissing
the Petitioner from service should be set aside in the facts and
circumstances of the present case only on the ground of this Court setting
aside the provisions of Regulation 90 of the Regulations.
19) A full-fledged enquiry into the misconduct is warranted in a
case where the misconduct is not admitted by an employee and the burden
is on the employer to prove the allegations. This position is reiterated by
the Division Bench of this Court in Employees' State Insurance Corporation,
New Delhi Versus. A. V. Tungare (supra) in which this Court has held as
under :
1994 Supp (2) SCC 391
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1. What are the consequences of admission of charges by a delinquent employee
before the Inquiry Officer in a disciplinary inquiry and whether after recording of
such admissions, the inquiry can still proceed or can be closed to submit a inquiry
report is the moot issue which arises in the present proceedings.
26. In this background, there is merit in the submissions which are urged on
behalf of the petitioner that the Central Administrative Tribunal could not have
set aside the order of dismissal as passed by the disciplinary authority. There is
also merit in the submission made by learned counsel appearing on behalf the
petitioner that the judgment in case of Jagdish Prasad Saxena v. State of Madhya
Bharat (supra) was not applicable in the facts of the present case on which much
reliance was placed by the learned counsel appearing on behalf of the 1st
respondent. In this judgment, the Supreme Court was dealing with a case where a
charge-sheet was issued to the delinquent employee on the basis of the alleged
admissions he had made in the course of inquiry directed against some other
government servant in connection with commission of certain offences, later on
the delinquent employee was removed from service on the strength of the alleged
admission without holding a formal inquiry as required by the Service Rules. In
these circumstances, it was held by the Supreme Court that the statement made by
the delinquent employee did not amount to unambiguous or clear admission of
his guilt and failure to hold a formal inquiry constituted a serious infirmity in the
order of dismissal passed against him. It is in this context their Lordships of the
Supreme Court made the following observations in para 11:
"11. It is true that the appellant specifically admitted during the course or
the previous enquiry that illegal liquor had been delivered to the
contractor, and that he had given the key of the receiver to Narona. It is on
the strength of those admissions that the High Court took the view that the
appellant had substantially admitted his guilt and so there was really no
need for holding a formal enquiry against him after the charge-sheet was
supplied to him. In this connection it is necessary to remember that the
previous enquiry was not directed against the appellant as such, and he
was certainly not in the position of an accused in the said enquiry. In fact,
as we have already indicated, the result of the said enquiry was that the
appellant was absolved from any complicity in the commission of the
offence, and the only criticism made against him was that he was slack in
his supervision, that is why he was transferred. In such a case, even if the
appellant had made some statements which amounted to admission it is
open to doubt whether he could be removed from service on the strength
of the said alleged admissions without holding a formal enquiry as
required by the rules. But apart from this consideration, if the statements
made by the appellant do not amount to a clear or unambiguous
admission of his guilt, failure to hold a formal enquiry would certainly
constitute a serious infirmity in the order of dismissal passed against him."
27. It is therefore, clear that the facts in the case of Jagdish Prasad Saxena (supra)
were quite different inasmuch as the employee was proceeded without a
departmental inquiry and hence the ratio in the said judgment would not be
applicable in the facts of the present case.
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20) Thus, in a case where the charge is admitted by the delinquent
employee, whether conduct of full-fledged enquiry to prove the charge by
leading evidence would be necessary ? The answer to my mind would be in
the negative. Once the employee admits the charge, there is no necessity for
the employer to conduct full-fledged enquiry and lead evidence to prove
the charge.
21) Having held that conduct of full-fledged enquiry into the
charge is held to be not necessary in a case involving admission of charge,
the next issue that arises for consideration is whether there is an admission
of charge by the Petitioner in the present case. Mr. Rairkar has strenuously
contended that after issuance of chargesheet, Petitioner has specifically
denied the charge and therefore the principle of non-conduct of enquiry in
the light of admission of charge, would have no application to the present
case. On the other hand, it is Mrs. Baxi's contention that the allegation of
misappropriation is expressly admitted by the Petitioner and that therefore
there was no necessity of conducting any enquiry in the present case.
22) In the present case, there are two sets of admissions. The major
admissions are before issuance of the chargesheet. As observed above,
Petitioner gave voluntary statement on 19 January 1999 even before lodging
of police complaint and expressly admitted misappropriation of amounts
and showed willingness to refund the same. The next correspondence is in
the form of letters dated 21 January 1999, 28 January 1999 and 3 February
1999 again admitting the acts of misconduct and demonstrating willingness
on the part of the Petitioner to bring back the misappropriated amounts. He
even deposited Rs. 30,000/- out of the total misappropriated amount. These
are admissions before issuance of the chargesheet.
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23) Coming to the position after issuance of the chargesheet dated
1 June 2001, though the Petitioner denied the charges levelled in the
chargesheet, he once again showed willingness to deposit the shortfall
amount. He referred to the past deposits made by him in support of the
contention that the alleged misappropriation were already made good and
that therefore no loss was sustained by the Respondent-Board. However, in
para-3(g) of his reply, Petitioner referred to the request made by him to the
PUZ office for intimating him the exact amount of shortfall for the purpose
of its deposit and non-receipt of any response by him. He however
expressed willingness to deposit the shortfall amount if the same continued
to be reflected in the accounts of the Respondent-Board. Here, it would be
relevant to reproduce paras-(d) and (g) of Petitioner's Revision dated
11 June 2001 which reads thus :
(d) The alleged irregularities of remittances said to be committed, have
been made good subsequently and reasons were orally informed to the Jt.
CAO and Chief Engineer, PUZ Pune. Thus there is no loss sustained by the
board in this account.
(g) Time and again I requested in PUZ office to intimate the short falls if
any so that I can pay, nothing was communicated. Thus it is evident that I
already remitted the short fall amount. Still I am ready to pay if any short
fall is there.
(emphasis added)
24) Reply filed by the Petitioner to the chargesheet shows that he
did not altogether deny that there was shortfall in the account of the
Respondent-Board due to his functioning as a Cashier. Though the
chargesheet is sought to be denied, he admitted the liability for making
good the shortfall. Thus, the reply dated 11 June 2001 also contained an
implied admission on the part of the Petitioner about the allegation of
misappropriation.
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25) In the present case, the Petitioner had admitted the
misappropriation of amount of Rs.3,70,000/- by his letter dated
3 February 1999 and records indicate that except the deposit amount of
Rs. 30,000/- he did not make good the said misappropriated amount till
issuance of the chargesheet. Therefore, willingness expressed by him in the
reply dated 11 June 2001 must be read in context of admission given by him
in his letter dated 3 February 1999 about misappropriation of amount of
Rs.3,70,000/-. In my view, therefore this is a clear case of admission of
charge of misappropriation.
26) The only defence that the Petitioner sought to create was about
the quantum of amount of misappropriation and about the Respondent-
Board not communicating the exact amount of refund to him. In my view,
when it comes to the allegation of misappropriation, the quantum of
misappropriated amount becomes irrelevant and the employer is entitled to
take strict action against the employee, even if smaller amount is found to
be misappropriated. Therefore, so long as the allegation of
misappropriation is admitted, in my view, nothing was left to be enquired
against the Petitioner. Conduct of enquiry into the exact amount of
misappropriation was unwarranted and Respondent-employer is justified
in dismissing the Petitioner from services once it finds that the allegation of
misappropriation was admitted by the Petitioner.
27) The conspectus of the above discussion is that though
Regulation 90 is subsequently set aside, the present case otherwise involves
admission on the part of the Petitioner in respect of the allegation of
misappropriation. In that view of the matter, the order of dismissal cannot
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be set aside on technical ground of non-conduct of enquiry. The ratio of the
judgment of the Apex Court in Jagdish Prasad Saxena Versus. State of Madhya
Pradesh4 and of Division Bench of this Court in Employees' State Insurance
Corporation, New Delhi Versus. A. V. Tungare would squarely apply to the
present case. I am therefore not inclined to interfere in the impugned order
of punishment which has been rightly approved by the Assistant
Commissioner of Labour.
28) The Writ Petition is devoid of merits. It is accordingly
dismissed with no order as to costs. Rule is discharged.
Digitally
signed by [SANDEEP V. MARNE, J.]
NEETA
NEETA SHAILESH
SHAILESH SAWANT
SAWANT Date:
2025.01.17
15:27:13
+0530
AIR 1961 SC 1070
17 January 2025
