All India Institute Of Medical ... vs Sh.Mohan Lal
2010 Latest Caselaw 1374 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               WP(C ) No.1074/2010

%                            Date of Decision: 12.03.2010

All India Institute of Medical Sciences                      .... Petitioner
                     Through Mr. Rajat Katyal, Advocate

                                     Versus

Sh.Mohan Lal                                                .... Respondent
                           Through Nemo

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.    Whether 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                NO
            in the Digest?


ANIL KUMAR, J.

* The petitioner All India Institute of Medical Sciences has

challenged the order dated 23rd January, 2009 passed in T.A

No.43/2008 titled Sh.Mohan Lal v. All India Institute of Medical

Sciences setting aside the penalty imposed upon the respondent and

directing petitioner to restore the withheld salary and further directing

for recovery of Rs.47,709/- after probing the matter and recover the

same from those who are responsible within a period of three months.

The brief facts to comprehend the controversies are that the

respondent was working as LDC in Hostel section in All India Institute

of Medical Sciences. Though the respondent was not appointed as a

cashier nor was given charge of cashier, however, on account of

shortage of about Rs.47,709/- major penalty proceedings were initiated

against him on the ground that in the record of students hostel the said

amount was found short and the respondent had been maintaining the

stock register. The stock register maintained by the respondent on the

basis of which major penalty proceedings were initiated was not the

proper cash book and was handled by different persons from time to

time nor it was registered nor verified by any officer incharge.

The respondent had given a statement on 29th December, 1993

that he has deposited the shortage, therefore, on the basis of this it was

held that there is an admission on his part of the misconduct and he

was held guilty and in the light of non revision of his subsistence

allowance in the wake of 5th Central Pay Commission recommendations,

the arrears of subsistence allowance payable to him later on was

adjusted towards the amount which was alleged to have been admitted

by him that he will deposit. Later on for the recovery of Rs.47,709/- it

was ordered to adjust the same from the arrears of subsistence

allowance and major penalty of reduction of pay was also imposed by

disciplinary authority by order dated 12th June, 2000 and an appeal

filed was dismissed without any reasons on 3rd July, 2001.

Before the Tribunal the respondent had challenged the imposition

of penalty of Rs.47,709/- by order dated 12th June, 2000 and 3rd July,

2001 on the ground that the alleged loss has no direct nexus to the

respondent as the cash register was handled by several officers and the

respondent was not solely responsible for maintaining the account

which was not even the cash book and in the circumstances the liability

of shortage of cash cannot be imputed solely on the respondent. The

orders of the disciplinary authority and the appellate authority were

also challenged on the ground that the statement made by the

respondent on 29th December, 1993 is not an admission especially in

view of the fact that in the departmental proceedings it had not been

established that respondent was solely responsible for the loss of the

amount. The orders were also impugned by the respondent that they

did not show any application of mind as none of the pleas and

contentions of the respondent were considered nor any cogent reasons

were given for imputing liability solely on him.

The petition was contested by the petitioner before the Tribunal

on the ground that in view of the specific admission by the respondent

to deposit the shortfall, no further evidence was required nor the order

of the disciplinary authority and the appellate authority require to

disclose any further reasons.

The learned counsel for the petitioner All India Institute of

Medical Sciences has reiterated the contentions raised before the

Tribunal that the offer by the respondent on 29th December, 1993 shall

constitute admission on his part and consequently the order of the

Tribunal setting aside the punishment order is liable to be set aside.

We have heard the learned counsel for the parties and have also

perused the enquiry report. The analysis and assessment of evidence by

the enquiry officer itself stipulates that the cash register was not the

proper cash book in the prescribed format and it was not kept properly

besides the register was handled by different persons from time to time

and was not verified and attested either by officer incharge or any other

officers from time to time. The enquiry report also stipulated that the

respondent during the proceedings did not admit the shortage of cash

imputable solely to him. The sole reliance is given on the alleged

confessional statement though in the enquiry report it also stipulated

that the respondent sought to contest the alleged confessional

statement. The enquiry report also stipulated in its analysis and

assessment of evidence that from the deposition of witnesses it is

apparent that no proper system of maintenance and handling of cash

was worked out and there was lack of supervision and direction from

the officers.

On consideration of the enquiry report the Tribunal has held that

the enquiry report does not hold the respondent as the sole defaulter for

loss of money and in the circumstances it is vague and indefinite as far

as the respondent is concerned. The learned counsel for the petitioner

is also unable to show in the facts and circumstances as to how the

respondent can be held solely responsible for the alleged shortage. In

the circumstances, it is apparent that the findings of the enquiry officer

holding respondent liable are contradictory and are based on no

evidence and the analysis and assessment of evidence does not

implicate the respondent solely nor demonstrate the culpability of the

respondent so as to be liable for punishment.

The enquiry officer has also made certain recommendations

which dilutes the alleged implication of the respondent considerably

which has been considered by the tribunal. The disciplinary authority

has also proceeded on the basis of the statement by the respondent to

fulfill the shortage, however, that will not reflect the culpability of the

respondent which has not been established on the basis of the evidence

before the enquiry officer. From the report of the enquiry officer it

appears that the respondent has rather been absolved of the charges

and the disciplinary authority has not differed with the enquiry officer

nor has given any disagreement note and has mechanically held the

respondent liable for the loss on account of shortage and has also

imposed the penalty of stoppage of increment during the pendency of

the penalty order and that the reduction will not have effect after three

years from the date of penalty order.

The appeal filed by the respondent does not deal with the pleas

and contentions and was rejected stipulating that the appeal has been

considered and has been rejected. The learned counsel for the petitioner

in the circumstances is unable to show any cogent reasons given by the

disciplinary authority and appellate authority to reject the pleas and

contentions of the respondent. On the basis of orders of the disciplinary

authority and appellate authority it cannot be held that the charges had

been made out against the respondent.

In the ultimate analysis neither the enquiry report nor the order

of the disciplinary authority or the appellate authority implicate the

respondent even on the preponderance of probabilities so as to make

the respondent liable for punishment imposed upon him. Consequently

the order of the tribunal setting aside the order of the punishment

dated 12th June, 2000 and the appellate order dated 3rd July, 2001

cannot be faulted on any of the grounds raised by the learned counsel

for the petitioner. This Court also does not find any such illegality or

irregularity in the order of the Tribunal dated 23rd January, 2009 which

will require interference by this Court in exercise of its jurisdiction

under Article 226 of the Constitution of India.

The writ petition is without any merit, and it is, therefore,

dismissed. All the applications are also disposed of.

ANIL KUMAR, J.

MARCH 12, 2010                                    MOOL CHAND GARG, J.
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