Smt.Kanta Rani vs The District And Sessions Judge
2010 Latest Caselaw 2713 Del

        *                IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                       Reserved on : 17.05.2010
        %                                           Date of decision : 21.05.2010

        +                             WP (C) No.5165/2008


        SMT.KANTA RANI                  ...       ...       ...       ...       ...PETITIONER

                                Through :       Ms.Sunita Rani Sharma, Adv.


                                        -VERSUS-


        THE DISTRICT AND SESSIONS JUDGE...                        ...       RESPONDENT

                                Through :       Ms.Avnish Ahlawat and
                                                Mr.Nitesh Kumar, Advocates


        CORAM:
        HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
        HON'BLE MS. JUSTICE VALMIKI J.MEHTA


        Whether the Reporters of local papers
        may be allowed to see the judgment?                             NO

        To be referred to Reporter or not?                              NO

        Whether the judgment should be                                  NO
        reported in the Digest?


        SANJAY KISHAN KAUL, J.

1. Sh. M.R.Ghai and Smt. Kanta Rani, petitioner herein,

were charged for financial irregularities detected during

the period they worked as Readers in the Court of

S.K.Gautam, MM, Tis Hazari Courts. Sh.M.R.Ghai was

working as a Reader in that Court while the petitioner

herein was posted as a Reader in place of Sh.M.R.Ghai

vide office order dated 20.05.1998 and she joined duties

with effect from 22.05.1998. Sh. M.C.Aggarwal, an _____________________________________________________________________________________________

Officer on Special Duty, on checking found various

discrepancies in the accounts which resulted in further

inquiry into the matter followed by issuance of

Statement of Articles of Charges as the explanation

given by the delinquent officials i.e.Sh.M.R.Ghai and the

petitioner was not found satisfactory. It may be noticed

that the petitioner claimed that the records were being

managed by Sh.M.R.Ghai and whatever was available

with him was taken over by her.

2. The Department led its evidence and the petitioner also

led defence evidence though she did not herself step

into the witness box.

3. Sh.S.K.Gautam, MM, was also examined as RW-5 and

stated on oath that he had not instructed the petitioner

to work under the supervision of Sh.M.R.Ghai as claimed

by her. The petitioner and Sh.M.R.Ghai claimed that the

original records had been destroyed even though

Sh.M.C.Aggarwal had checked the records. The Fine

Register of the relevant period was summoned by the

Inquiry Officer and it was found that the certain relevant

pages had been deliberately removed therefrom. Sh.

M.C.Aggarwal deposed to the audit done by him and the

financial discrepancies found. One of the charges

against the petitioner of not depositing a particular fine

recovered was found proved and the Disciplinary

Authority vide order dated 07.08.2006 imposed

punishment of dismissal from service on Sh. M.R.Ghai,

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but insofar as the petitioner was concerned, penalty of

compulsory retirement from service with immediate

effect was imposed.

4. The petitioner aggrieved by this order preferred an

appeal. Sh. M.R.Ghai also preferred an appeal and both

theses appeals have been dismissed vide the impugned

order dated 22.11.2007 of a learned Single Judge of this

Court who was acting as an Appellate Authority. The

Disciplinary Authority and the Appellate Authority have

taken note of the financial irregularities found which

amounted to lack of integrity.

5. The petitioner had been posted in place of Sh.M.R.Ghai

and both of them apparently continued to work together

in the same Court up to the date to which the last

transaction forming part of the charge sheet relates.

The Audit Report found that the amount received as fine

had not been deposited with the Government account.

In fact, there were a number of such discrepancies of

non-deposit of fine with the Government account, which

in all were numbering eleven (11). The discrepancies

related to two periods - The first period being from

27.03.1998 to 13.05.1998 when Sh.M.R.Ghai alone was

working as the Reader while the second period was from

22.05.1998 to 27.05.1998 when the petitioner had

joined the posting as a Reader and both of them were

working together. There were three transactions for the

second period, out of which two were found duly

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accounted for and the Disciplinary Authority had given a

finding of guilt only in respect of one transaction when a

fine of Rs.1,000/- had been imposed on 27.05.1998 but

only Rs.100/- was deposited with the Government

account.

6. The aforesaid has to be appreciated in the background

of the defence taken by the petitioner that the charge

had not been handed over to her and that Sh.M.R.Ghai

also continued to work as a Reader till 28.05.1998 and

onwards. The entries are stated to have been made by

Sh. M.R.Ghai who handed over the Running Register to

her only for the period from 06.10.1998 to 17.11.1998.

The finding arrived at by the Appellate Authority show

that the Inquiry Officer had given full opportunity to the

Delinquent Officers by putting each incriminating

circumstance to the charged officer giving him/her an

opportunity to explain the same. Insofar as the

petitioner is concerned, she had joined her posting as a

Reader in the Court of Sh.S.K.Gautam, MM (RW-5) on

22.05.1998 though Sh.M.R.Ghai continued to work at the

same place despite his transfer. Since the Reader In-

Charge is the officer responsible, the petitioner has been

found guilty. The testimony of Sh.S.K.Gautam, MM (RW-

5) however shows that Sh. M.R.Ghai was retained and

both of them i.e. Sh.M.R.Ghai and the petitioner worked

together and not that the petitioner worked under

Mr.M.R.Ghai.

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7. Having heard learned counsel for the parties, we find

that there can be really be no dispute about the finding

against the petitioner in respect of one of the charges

out of the three charges in question i.e. of deposit of

only Rs.100/- with the Government account as against

fine imposed of Rs.1,000/-. This has, however, to be

appreciated in the background of the conduct of the

previous Reader Sh. M.R.Ghai against whom various

irregularities were found. Two of the amounts in

question detected as un-deposited were found to have

actually been deposited by the petitioner. Thus, the

delinquency of the petitioner is only in respect of one of

the fine amounts. We find no reason why Sh. M.R. Ghai

ought to have continued to work alongside the petitioner

but for a direction by Sh.S.K.Gautam, MM (RW-5). This

was possibly to facilitate the transition but the fact

remains that both Sh.M.R.Ghai and the petitioner

continued to handle accounts. The charges found

against Sh.M.R.Ghai have resulted in penalty of dismissal

from service while the punishment of only compulsory

retirement has been imposed on the petitioner.

8. Learned counsel for the petitioner emphasized that the

petitioner had a blemishless career of 26 years and the

confusion had arisen because there were two persons

doing the same job and the other person was found to

be delinquent in respect of the various amounts

collected as fine though not deposited with the

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Government account. The lack of care on the part of the

petitioner thus must be considered within that

parameter.

9. We cannot lose sight of the fact that the Trial Courts are

loaded with work. The supporting staff is equally

burdened. If the person from whom you are taking over

charge, and who continues to work with you, has been

involved in a continuous process of falsification of some

accounts, the possibility of mistake is even greater. It

has already been noticed above that the auditor

detected the problem in respect of two periods of close

proximity and the first period was when Sh. M.R. Ghai

alone was working as a Reader. There were only three

transactions for the subsequent period when both

Sh.M.R. Ghai and the petitioner were working and in

respect of two of the transactions, fine amounts were

found to have actually been deposited with the

Government account. The controversy thus revolves

around only one fine amount of Rs.1,000/- in respect of

which only an amount of Rs.100/- had been deposited

with the Government account. The testimony of Sh.

S.K.Gautam, MM (RW-5) shows that though he has not

supported the petitioner on the issue of her working

under Sh.M.R.Ghai, he has stated that both of them were

working together. Thus, while the petitioner had taken

over charge as a Reader, Sh.M.R.Ghai also continued to

perform the duty simultaneously.

_____________________________________________________________________________________________

10. If we consider the aforesaid aspect, we find that it

can at best be labeled only as a case of negligence and

carelessness on the part of the petitioner arising from

the factum of her having assumed duty. If this be so,

the punishment of compulsory retirement in the

background of blemishless career of 26 years seems to

be excessively harsh, shocking the conscience of this

Court. We draw strength from the observations made

by the Supreme Court in Dev Singh V.Punjab Tourism

Development Corporation Ltd & Anr.; (2003) 8 SCC 9

where an official file had been misplaced and in the

absence of any ulterior motive, the punishment of

dismissal from service was held to shock the judicial

conscience of the Court and was replaced with

punishment of withholding one increment including

stoppage of efficiency bar in substitution of punishment

of dismissal from service awarded by the Disciplinary

Authority with a further rider that the appellant therein

would not be entitled to any backwages for the period of

suspension. The Supreme Court being mindful of the

scope for interference in an appeal against the

punishment imposed by the Disciplinary Authority

observed as under:

"6. A perusal of the above judgments clearly shows that a court sitting in appeal against a punishment imposed in the disciplinary proceedings will not normally substitute its own conclusion on penalty, however, if the punishment imposed by the disciplinary authority or the appellant authority shocks the _____________________________________________________________________________________________

conscience of the court, then the court would appropriately mould the relief either by directing the disciplinary/appropriate authority to reconsider the penalty imposed or to shorten the litigation it may make an exception in rare cases and impose appropriate punishment with cogent reasons in support thereof. It is also clear from the abovenoted judgments of this Court, if the punishment imposed by the disciplinary authority is totally disproportionate to the misconduct proved against the delinquent officer, then the court would interfere in such a case."

11. Learned counsel for the respondent of course

canvassed before us that the retirement benefits of the

petitioner have been protected by imposition of penalty

of compulsory retirement as against dismissal from

service. However, the punishment awarded to the

petitioner seems to us to be too harsh and in the given

facts of the case and the background discussed above,

we are inclined to follow the course of action as adopted

by the Supreme Court in Dev Singh V.Punjab Tourism

Development Corporation Ltd & Anr's case (supra) in

substituting the order of compulsory retirement in

respect of the petitioner with an order of withholding of

one increment including stoppage of efficiency bar. We

further direct that the petitioner will not be entitled to

any backwages other than the suspension allowance, if

any, already paid to her till the formal order is issued by

the competent authority re-instating the petitioner in

service subject to the condition that the petitioner

rejoins the service.

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12. Needful be done by the competent authority within

one month from the date of communication of the order.

13. The writ petition stands allowed in the aforesaid

terms leaving the parties to bear their own costs.

SANJAY KISHAN KAUL, J.

        MAY 21, 2010                                    VALMIKI J.MEHTA, J.
        dm

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