Delhi High Court
Shri R.K. Jain vs Union Of India & Another on 2 September, 2008
Author: Madan B. Lokur
* HIGH COURT OF DELHI : NEW DELHI
+ Writ Petition (Civil) No. 3297 of 1998
Judgment reserved on: August 12, 2008
% Judgment delivered on: September 02, 2008
Shri R.K. Jain
Son of late Shri Nand Kishore Jain
Resident of WZ-246, Village & PO Palam
New Delhi - 110045 ...Petitioner
Through Mr. G.D. Gupta, Senior Advocate
with Mr. B.S. Jain, Advocate
Versus
1. Union of India
Through Secretary
Ministry of Agriculture & Animal Husbandry
Krishi Bhavan
New Delhi - 110001
2. Delhi Milk Scheme (DMS)
Through its General Manager
West Patel Nagar
New Delhi - 110008 ...Respondents
Through Mr. A.K. Bhardwaj, Advocate
Coram:
HON'BLE MR. JUSTICE MADAN B. LOKUR
HON'BLE MR. JUSTICE J.R. MIDHA
WP (C) No.3297/1998 Page 1 of 9
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
MADAN B. LOKUR, J.
The two questions for our consideration are whether the
departmental inquiry against the Petitioner Mr. Jain is vitiated in any
manner whatsoever and whether the dismissal of his revision petition
against the punishment of compulsory retirement has been decided by
the correct authority. Our answer to both the questions is in the
affirmative and, therefore, we find no merit in this writ petition.
2. On 27th March, 1986 Mr. Jain was issued a memorandum
requiring him to explain:
a) A total short deposit of Rs.1445.15 from the cash collected
by him.
b) Keeping cash collected by him pending deposit for more
than 10 days.
3. It was pointed out to Mr. Jain that failure to deposit the full
cash collected by him and keeping some cash with him amounted to
temporary embezzlement of government money.
4. Mr. Jain submitted his explanation on 9 th April, 1986 and we
find it to be inculpatory in some respect. He said:
"That due to mental disturbance caused due to domestic
worries, there occurred a mistake in totaling of Rs.1002.15
while depositing cash collection in DMS Form 44 on 6/9/85.
However, when this discrepancy came to my notice, the
shortfall in total was deposited with DMS Form 44."
5. He denied that there was any further shortfall in deposit or that
he had ever retained government money for more than 10 days.
6. Not being satisfied with his response, the Respondents issued
a memorandum dated 17th March, 1987 proposing to hold a
departmental inquiry against Mr. Jain on the following two charges:
"CHARGE I
That the said Shri R.K. Jain while functioning as Cash Clerk
and deputed on route No.69(M) has misappropriated an
amount of Rs.1445/15 being the sale proceeds by way of short
deposit on 6.9.85, 9.9.85, 5.11.85 & 11.11.85. He is thus
charged with misappropriation of Govt. money to the tune of
Rs.1445/15 for his pecuniary gain which acts of a Govt.
servant show dishonesty, unbecoming and are in violation of
Rule 3 of CCS (Conduct) Rules, 1964.
CHARGE II
That the said Sh. R.K. Jain while functioning as Cash Clerk,
had temporarily misappropriated Govt. money being sale
proceeds of milk depots during Dec.,85 by way of retaining the
cash several days with him and thereafter depositing with
DMS. He is thus charged with temporarily misappropriation
of Govt. money for his personal use which acts show
dishonesty of a Govt. servant highly unbecoming and are in
violation of Rule 3 of CCS (Conduct) Rules, 1964."
7. On 12th February, 1988 the Inquiry Officer submitted his
report in which he found that Mr. Jain had embezzled Rs.1345.15
(against the 1st charge) and found that the 2nd charge was proved. He
also noted that an opportunity was given to Mr. Jain to explain his
position, but he failed to do so.
8. Based on the inquiry report, the Disciplinary Authority of Mr.
Jain passed an order dated 12th July, 1988 in which he found that Mr.
Jain was not a fit person to be retained in service in view of the gravity
of the offence. However, considering the length of his service, he took a
lenient view and imposed on Mr. Jain a punishment of compulsory
retirement from service.
9. Feeling aggrieved, Mr. Jain approached the authorities'
superior to his Disciplinary Authority by filing an appeal, followed by a
revision and then a review. They were all dismissed and the order of
compulsory retirement was confirmed.
10. Before us, learned counsel raised three substantive contentions
in respect of the first issue and only one contention in respect of the
second issue. We propose to deal with the contentions in seriatim.
11. On the first issue, it is firstly contended that there was no
evidence at all against Mr. Jain. We do not agree. The case against Mr.
Jain is based entirely on documents in view of the nature of the
collection and deposit activity. The documents speak for themselves and
indicate the amount collected by Mr. Jain and deposited by him - and
this, as noted by all the departmental authorities shows that Mr. Jain
made some short deposits and also retained some amounts with him.
12. In this context, we may also note three facts. Firstly, Mr. Jain
stated in his reply dated 9th April, 1986 that "due to mental disturbance
caused due to domestic worries, there occurred a mistake in totaling of
Rs.1002.15 while depositing cash collection in DMS Form 44 on
6/9/85." This is an admission made by Mr. Jain and cannot be easily
overlooked. Secondly, in his appeal memo dated 27th August, 1988, Mr.
Jain admitted short deposit of Rs.1445.45 out of which he initially
returned Rs.1002.45 and sought documents for substantiating the
remaining shortfall of Rs.443.30. With respect to the second charge of
late deposit of the amounts collected, Mr. Jain again admitted the delay
and stated that short deposits of cash collection "is a common feature
with each and every cash (clerk?) which is due to totaling mistake due to
heavy cash collections (as human error) and pendencies....." Under
these circumstances, Mr. Jain protested that "Whereas the other cash
clerks in the similar circumstances are either let off free and or no notice
is taken in their cases for similar human mistakes, the petitioner was
singled out and placed under suspension w.e.f. 19/21.4.1986 and served
with charge-sheet memo. No. 3-9/86-Vig. dated 17.3.1987". In the
review petition dated 23rd December, 1993, Mr. Jain admitted the short
deposit of a further sum of Rs.343/- and even returned this amount.
Once again, this is clearly an admission of wrong-doing by Mr. Jain.
Thirdly, during the inquiry proceedings, Mr. Jain was given an
opportunity to explain everything, but he failed to avail of that
opportunity. It is now not possible to accept any explanation sought to
be proferred on behalf of Mr. Jain.
13. The second submission is that some documents were not
supplied to Mr. Jain during the course of inquiry. This aspect of the
matter has been considered by the Inquiry officer, who has observed in
his report as follows:
"The main reason for the delay in the case was that the
concerned officials could not produce the originals of the
listed documents from time to time and the additional
documents demanded by the charged officer. On 14.1.88
Prosecution Witness No.1 Shri S.R. Verma, Acctts. Officer
showed all the listed and related documents to the C.O. The
C.O has admitted this fact in writing that he has inspected all
the documents. During the regular hearing on 14.1.88, the C.O
himself cross-examined Prosecution Witness No.1."
There is, therefore, no substance in this contention of the Petitioner.
14. Thirdly, it is submitted that the report of the Inquiry Officer
did not contain any reasons for finding Mr. Jain guilty of misconduct.
Again, we cannot agree with learned counsel. The case against Mr. Jain
was not a very complicated one, and as already mentioned above, the
inquiry was essentially based on the documents on record. The
prosecution examined only one witness who proved the documents. Mr.
Jain declined to lead any evidence in his support. Under these
circumstances, there was no necessity of the Inquiry Officer submitting
a long, drawn out report. He considered the documents and evidence on
record and gave his report based on that material. No fault can be found
with the inquiry report in this regard.
15. On the second issue, the simple contention on behalf of Mr.
Jain is that his Disciplinary Authority and the Revisionary Authority are
the same. There is absolutely no substance in this contention. The
confusion appears to have occurred because the order passed in revision
is communicated by Mr. Baldev Chand, who is Mr. Jain's Disciplinary
Authority. Mr. Jain's Revisionary Authority is the President. Merely
because Mr. Baldev Chand communicated the order of the President
does not make him his Revisionary Authority.
16. Before we conclude, we may refer to the scope of interference
permissible to us under Article 226 and 227 of the Constitution in
matters such as these. The Supreme Court in Union of India v. Parma
Nanda, (1989) 2 SCC 177, while dealing with the power of the Tribunal
(and we think this would equally apply to the High Court) held:
"We must unequivocally state that the jurisdiction of the
Tribunal to interfere with the disciplinary matters or
punishment cannot be equated with an appellate jurisdiction.
The Tribunal cannot interfere with the findings of the Inquiry
Officer or competent authority where they are not arbitrary or
utterly perverse."
17. Applying the law laid down by the Supreme Court, in our
opinion, this is not an appropriate case for interference. Accordingly, the
writ petition is dismissed.
MADAN B. LOKUR, J
September 02, 2008 J.R. MIDHA, J
ncg
Certified that the corrected
copy of the judgment has
been transmitted in the main
Server.
