Dtc. Of Social Welfare vs Shri Tara Chand & Ors.
2009 Latest Caselaw 5210 Del

 *         IN THE HIGH COURT OF DELHI AT NEW DELHI

 +                        W.P(C) NO.4896/2001

 %                      Date of Decision: 15.12.2009



        DTC. OF SOCIAL WELFARE             ..... Petitioner
                  Through : Mr. Prakash Gautam, Advocate.

                             versus

        SHRI TARA CHAND & ORS.              ..... Respondents
                  Through : Mr. M.C. Dhingra, Advocate.


 CORAM:
 HON'BLE MR. JUSTICE ANIL KUMAR
 HON'BLE MR. JUSTICE VIPIN SANGHI

 1. Whether the Reporters of local papers may be       Yes
    allowed to see the judgment?

 2. To be referred to the Reporter or not?             No

 3. Whether the judgment should be reported in the     No
    Digest?

%                            JUDGMENT (Oral)


ANIL KUMAR, J.

1. The petitioner, Department of Social Welfare, Govt. of NCT

of Delhi has filed the present writ petition under Article 226 of the

Constitution of India to impugn the order dated 24.05.2001 passed by

the Central Administrative Tribunal, Principal Bench, New Delhi in

O.A. No.1461/2000 preferred by the Respondent, Shri Tarachand.

The Tribunal quashed the order of removal dated 20.01.1999 passed

against the respondent and also the order dated 29.02.2000, whereby

his departmental appeal was dismissed by the Lt. Governor of NCT of

Delhi. The petitioner was also directed to reinstate the respondent

immediately in service. It was held that the respondent would be

entitled to all consequential benefits in accordance with law. Liberty

was granted to the petitioner to proceed in the matter in accordance

with law by keeping in view the observations made by the Tribunal.

The respondent was also awarded costs of Rs.10,000/-.

2. The respondent was appointed as LDC/Cashier in the Social

Welfare Department in the year 1978. On 27.02.1982, he was

promoted to the post of UDC and transferred to the office of the

Superintendant, Central Jail. The respondent was issued a charge

memo under Rule 16 of the CCS CCA Rules, on the allegation that

while he was working as cashier in Reception-cum-Classification

Centre, Kingsway Camp, Delhi, he had misappropriated a sum of

Rs.10,000/- by making overwriting in the Government cash book. The

disciplinary authority, i.e. the Inspector General of Prisons conducted

an enquiry under Rule 16. The respondent deposited the amount of

Rs.10,000/- in two equal installments of Rs.5,000/- each. Taking into

consideration the aforesaid aspect and the enquiry report, the

respondent was issued a warning vide order dated 21.04.1989.

3. Subsequently, the petitioner discovered that the amount

misappropriated was not Rs.10,000/- but was Rs.18,263.08 between

the period 14.07.1978 to 30.04.1981, while the respondent was

working as Cashier in Reception-cum-Classification Centre, Kingsway

Camp, Delhi. The respondent deposited Rs.17,936/- after being so

pointed out by the officers and the Auditing party, including the

amount of Rs.10,000/- as aforesaid.

4. The petitioner issued a fresh memorandum of charge sheet

dated 27.07.1990 under Rule 14 of the CCS (CCA) Rules, 1965,

charging the respondent with misappropriation of Rs.18,263.08, i.e.

the entire amount which the respondent had allegedly

misappropriated. It appears that the petitioner, however, realized the

error in issuing the charge sheet for the entire amount, as the amount

of Rs.10,000/- had already been paid back and in respect of the

misappropriation of Rs.10,000/-, the respondent had already been

proceeded with under Rule 16 and issued a warning. Consequently,

the petitioner issued a corrigendum dated 16.07.1991, whereby the

amount allegedly misappropriated by the respondent was stated to be

Rs.8,263.08. An enquiry was conducted and the enquiry officer found

the charges leveled against the respondent as proved. The Chief

Secretary, Govt. of NCT of Delhi, as the disciplinary authority, passed

the order dated 20.01.1999 removing the respondent from service

with immediate effect. As aforesaid, the departmental appeal was

rejected by the Lt. Governor on 29.02.2000.

5. The Tribunal passed the impugned order on finding that

even though the charge memo had been amended vide corrigendum

dated 16.07.1991, the Disciplinary Authority passed his order by

reference to the original charge sheet which alleged misappropriation

of an amount of Rs.18,263.08 and not Rs.8,263.08. Similarly, the

Appellate Authority failed to notice the aforesaid glaring omission

made by the Disciplinary Authority despite it being brought to its

notice in the respondent's appeal. In fact, the Appellate Authority had

taken into consideration the facts pertaining to the earlier minor

penalty charge (pertaining to misappropriation of Rs.10,000/-) while

passing the impugned order. The Tribunal held that the impugned

orders had been passed without any application of mind.

6. Learned counsel for the petitioner submits that the conduct

of the respondent in depositing the total amount of Rs.17,936/- itself

demonstrates the fact that he had misappropriated the said amount

and he coughed out the amount only when he was caught. If it would

have been a mere inadvertent lapse on his part, the respondent would

have refunded the entire amount of Rs.18,263.08 on his own without

waiting for the same to be discovered by the petitioner and its

auditors. Even when the respondent was caught in the first instance

in relation to misappropriation of the amount of Rs.10,000/-, he did

not on his own disclose that the amount misappropriated was

Rs.18,263.08 and not Rs.10,000/-. He merely deposited the amount of

Rs.10,000/- at that stage to save himself from any strict action that

could have been taken against him by the Disciplinary Authority.

7. On the other hand, learned counsel for the respondent has

submitted that the respondent did not wish to get involved in any

proceedings, and without any admission of guilt, he paid the amount

of Rs.17,936/- so as to get rid of the departmental proceedings. The

respondent has also appeared before us along with his counsel.

8. Having heard the learned counsel for the parties, we are of

the view that the finding of the Tribunal that the order of penalty

dated 20.01.1999 and the Appellate order dated 29.02.2000 had been

passed without application of mind, are justified and the non-

application of mind by the Disciplinary Authority and the Appellate

Authority is writ large from the fact that the disciplinary authority has

failed to notice the amended charge as per the corrigendum dated

16.07.1991, whereby the amount allegedly misappropriated was

reduced from Rs.18,263.08 to Rs.8,263.08. Similarly, the Appellate

Authority has taken into consideration the facts pertaining to the

misappropriation of Rs.10,000/-, which was the subject matter of

different charge issued under Rule 16 of the CCS CCA Rules.

9. Considering the fact that the charge against the respondent

pertains to the period 1978-81 as also the fact that the respondent has

retired and appears to be rather frail and living in penury, we are not

inclined to permit the petitioner to restart the enquiry against the

respondent at this late stage. Pertinently, there was no stay granted

by this Court of the impugned order, which permitted the restart of

the enquiry. The petitioner could have, without prejudice to its rights,

restarted the enquiry in compliance of the impugned order. However,

that was not done. Nearly eight years have passed since the passing

of the impugned order. We, therefore, close the right of the petitioner

to restart the enquiry against the respondent.

10. At the same time, the respondent cannot be permitted to

make undue profit out of the situation which has emerged as a result

of the quashing of the order of penalty and the Appellate order. The

grant of all consequential benefits by the Tribunal, while directing the

respondents' reinstatement, in our view, is not entirely justified as the

respondent has never served the petitioner from the date of his

removal, and he has, in the meantime, reached the age of

superannuation. In our view, this is a fit case of invocation of Rule 17

of the Fundamental Rules as the inability of the respondent to work

was a result of his own conduct. The penalty order has been quashed

by the Tribunal only on a technical ground, and we cannot lose sight

of the fact that the respondent had indeed refunded an amount of

Rs.17,936/- out of the amount of Rs.18,263.08, which he had allegedly

misappropriated.

11. In view of the aforesaid position, we are not inclined to grant

arrears of salary and other allowances to the respondent from the

date of removal till the date of passing of the impugned order by the

Tribunal, whereby the respondent's punishment of removal from

service was set aside. We may refer to the judgment reported as

Krishnakant Raghunath Bibhavnekar v. State of Maharashtra

(1997) 3 SCC 636. Learned counsel for the respondent Mr. M.C.

Dhingra, on instructions from the respondent who is also present,

concedes that the respondent would not be entitled to payment of

arrears of salary for the said period.

12. In view of the aforesaid, while upholding the order of the

Tribunal setting aside the removal of the respondent, we modify the

direction issued by the Tribunal to grant arrears of pay, allowances

and pensionary benefits etc. to the respondent, and direct that the

arrears of pay and allowances shall not be payable for the period

20.01.1999 (the date of the order of removal) till 24.05.2001 (the date

when the order of the reinstatement of respondent was passed by the

Tribunal). The amount due to the respondent be paid within eight

weeks. We further direct that the petitioner shall not be entitled to

restart enquiry against the respondent and the same shall stand

closed. The costs awarded by the Tribunal against the petitioner and

in favour of the respondent are also set aside. Parties are left to bear

their respective costs.

13. Copy of this order be given Dasti.

ANIL KUMAR, J.

VIPIN SANGHI, J.

DECEMBER 15, 2009 sr