Delhi High Court
L.N.Tikku vs Uoi & Ors. on 17 March, 2016
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7877/2005
L.N. TIKKU ..... Petitioner
Through: Mr. Nishant Anand, Advocate
versus
UOI & ORS. ..... Respondents
Through: Mr. Vikas Mahajan, CGSC &
Mr. S.S. Rai & Mr. Amit Mehra,
Advocates
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MR. JUSTICE SUNIL GAUR
ORDER
% 17.03.2016
1. The petitioner, who was working on the post of an Executive
Engineer (Civil) with the Border Road Development Board and was
posted as the Officer Commanding at 68 RCC in the year 1994, was
issued a Memorandum of Charge dated 20th March, 1998, in respect of
some mismatch of funds collected as offerings in the month of
November, 1994, in respect of two temples in the area, inasmuch as
against a sum of Rs.51,816.25 collected as offerings, only a sum of
Rs.37,855 was reflected in the Regimental Cash Account Book.
2. The Memorandum of Charge dated 20th March, 1998 had enclosed
therewith three Articles of Charge. However, we propose to confine
ourselves to Article-I only, as the remaining two charges were not proved
in the course of the departmental inquiry held against the petitioner.
3. Article-I of the Statement of Articles of Charge is reproduced
hereinbelow for ready reference:-
" ARTICLE-I
That the said Shri L.N. Tiku, EE (C) [now SE(C) SG]
while functioning as Officer Commanding, 68 Road
Construction Coy during Dec. 94 was required to account for a
sum of Rs.51,816.25 in the Regimental Cash Accounts Book of
unit on account of Offerings for the month of Nov. 94 in respect
of Rs.37,855/- only was taken on charge by Shri K.
Sadanandan, 2nd in Command of said unit, which was
countersigned 'as correct by Shri L.N.Tiku, EE (C) [now SE(C)
SG]. Thus Shri L.N. Tiku EE (C) [now SE(C) SG] while
holding a Supervisory post failed to ensure proper accounting
and also failed to maintain absolute devotion to duty in terms of
Rule 3(1) (ii) of CCS (Conduct) Rules, 1964."
4. The petitioner was called upon to submit a reply to the aforesaid
Memorandum of Charge dated 20th March, 1998. A reply dated 27th
April, 1998 was submitted by him wherein he had responded to the
charge levelled against him in respect of Article-I, in the following
manner:-
"Annexure I
(a) Article I of Annexure I. As per Charter of duties of
Second-in Command of the RCC, all the offerings collected in
respect of Tiranda Mandir and Srimati Dhang Mandir were
being accounted for by AE (C) K Sadanandan through a Board
of Officers which was detailed by him after consultation with
OC unit. The undersigned was working as OC unit and to have
smooth functioning of the unit, it is imperative to have the full
and complete trust on the Second-in-Command of the unit. I
was having this trust on Shri K Sadanandan, AE (C) and there
was no untoward incident in the past. However, following
procedure was followed for collection of offerings/ donations at
the Tiranda and Srimati Dhang Mandirs:-
All the offerings used to be collected in sealed boxes
which were further collected by Board of Officers from the
above said Mandirs and brought to HQ RCC location. These
boxed are opened in the presence of BOO and subsequently
money is counted and deposited with the Second-in-Command
RCC. He caters the amount, thus collected, in appropriate
account and then deposits it in the Bank. It is only the Board
Proceedings which OC RCC is used to sign on the advise of
Second-in-Command, RCC, the account holder of all the
accounts maintained at RCC level.
I have no knowledge about posting of less amount in the
cash box than what was collected through the Board of Officers
for the month of Nov 94. In case there has been some
concealment of the amount from the collection of Mandir
offerings through Board of officers, the same was not brought
to my notice. At that time, I had never thought of that there
could be any variation between the posted amount and the
amount actually collected by BOO since it had never happened
previously and I had full faith in my 2IC Shri K Sadanandan,
who was sincere and meticulous in his job. I do not recollect
the happening then and if it had happened, it is purely the
breach of faith and Shri K Sadanandan seems to have taken full
advantage of it."
5. It is the case of the respondents that going by the charter of duties
referred to by the petitioner in his reply to the Memorandum and the fact
that he had himself constituted a three member Board of Officers to
monitor the offerings collected in the two temples, which were required
to be opened in their presence, the money counted and deposited with Sh.
K. Sadanandan, the Second-in-Command, who was required to maintain
the books of accounts in respect of the amounts received and then deposit
it in the bank, the stand taken by the petitioner that he had no knowledge
about posting of a less amount in the cash book than what was collected
by the Board in November, 1994, was not found to be satisfactory and
resultantly, an inquiry was conducted in respect of the three charges
levelled against the petitioner. The respondent's counsel informs us that
the inquiry was conducted not only against the petitioner but separate
inquiries were also conducted against Sh. K. Sadanandan, the Second-in-
Command and two other member of Board of Officers.
6. Five witnesses were produced by the respondents during the
inquiry proceedings. The petitioner produced two defence witnesses and
also made a statement before the Inquiry Officer. On the conclusion of
the inquiry, the Inquiry Officer had submitted his report dated 4th August,
1999, with respect to the three Articles of Charge levelled against the
petitioner, wherein he had concluded that Charge -I levelled against the
petitioner stood proved, however, Charges - II & III were not proved. The
observations made by the Inquiry Officer in respect of Charge-I is
reproduced herein below for ready reference:-
" FINDINGS OF EACH ARTICLE OF CHARGE
Finding are as under on each article of charge I,II, III
(as given in Annexure 1 to Sectt. BRDB Memorandum No.F.75
(91/Vig/BRDB/95-Estt dated 20 March 98) against Shri L N
Tiku, EE (C) now SE (C) SG (who was functioning as Officer
Commanding of 68 RCC during Dec. 94), keeping in view the
'Preponderance of Probability and Not Proof Beyond
Reasonable Doubt' and the evidence (documentary evidence
and oral evidence) as adduced before Inquiry Officer in
Departmental Enquiry.
(a) Article of Charge-I
"........ Shri. L.N. Tiku, EE (C) now SE (C) SG was required
to account a sum of Rs.54,816.25 in Regimental Cash account
cash book of unit on account of offerings for the month of
Nov.94 in respect of 2 temples. Where as a sum of Rs.37,855/-
only was taken on charge by Shri. K. Sadanandan, 2 IC of unit,
which was countersigned as correct by Shri. L.N. Tiku. Shri
L.N.Tiku while holding supervisory post failed to ensure proper
accounting......"
Conclusion:- Shri L.N. Tiku had countersigned the cash
account for Dec. 94 in Regimental Fund Cash book, without
obtaining the copy of Board Proceedings and without
ascertaining accuracy of account (Refer Para 54,55)."
7. A copy of the inquiry report dated 4th August, 1999 was furnished
to the petitioner to enable him to make a representation. The petitioner
had submitted his representation dated 6th October, 1999 to the
respondents. Vide order dated 29th March, 2001, the petitioner was
inflicted with the punishment of withholding one increment that was to
fall due on 1st May, 2002, for a period of one year, without cumulative
effect.
8. Aggrieved by the aforesaid order, the petitioner had preferred an
appeal dated 15th October, 2001, which was rejected vide order dated 28th
November, 2001 on the ground that no appeal lies against the order made
by the President. The petitioner preferred another appeal dated 21 st
January, 2002, before the President of India, which was rejected vide
order dated 23rd June, 2002 and on 25th June, 2002, the respondents fixed
the pay of the petitioner in terms of the penalty inflicted upon him.
Aggrieved by the aforesaid order, the petitioner had filed the present
petition in the year 2005.
9. Mr. Nishant Anand, learned counsel for the petitioner, submits that
while passing the impugned order, the respondents did not take into
consideration the fact that as per the procedure laid down for collection of
the offerings at the two temples in question, it was the Board of Officers
of the Mandir who were expected to open the box and count the money
and thereafter the same was to be deposited with Sh. K. Sadanandan, the
Second-in-Command, whose duty it was to prepare the books of
accounts. The petitioner was only expected to counter sign the books of
accounts and having faith in the aforesaid Officer, he had counter signed
the said books of accounts. As the books of account did not reveal that
there was any mismatch of the funds actually received and deposited, the
petitioner had affixed his signatures in the books of accounts.
10. Learned counsel for the petitioner states that the petitioner was kept
in the dark about the actual collection of funds, which would be borne out
from a perusal of the evidence recorded in the department proceedings.
He submits that the lapse on the part of the Second-in-Command, cannot
be passed on the petitioner. Lastly, it is submitted that the punishment
imposed on the petitioner is excessive, unwarranted and disproportionate
to the misconduct alleged against him.
11. Learned counsel for the respondents has produced the records of
the departmental proceedings, which we have carefully perused,
particularly, the statement of Sh. K. Sadanandan, SW-1. The said
Officer, during his examination on 20th April, 1999, had stated that he
was deputed as the Presiding Officer for counting and depositing the
mandir collection in the month of November, 1994. The counting of cash
for the month of November, 1994 was carried out by the Board of
Officers along with other unit personnel and though he was not physically
present throughout the counting, he would check the position off and on.
Sh. K. Sadanandan, SW-1 further stated in his examination that the
counting of cash was completed in the evening of 8th December, 1994 and
he had left the office complex by 5:00 p.m.. When he had left, the
counting was almost over and the personnel were putting the cash in the
cash box. On the next day, i.e. on 9th December, 2014, when Sh. K.
Sadanandan (SW-1), had reached his office at 8:30 a.m., he was informed
that the cash collection was short and he had immediately informed the
petitioner about the said position. He stated that out of the total collection
of Rs.51,816.25, Rs.37,855/- was in currency notes and Rs. 13961.25/-
was in coins. He further stated in his examination that the amount of Rs.
37,855/- was in the cash box and the amount of Rs.13961.25/- collected
in the form of coins was not there and only then did it transpire that the
said amount had been stolen. The GREF personnel, along with the local
police had approached him with a proposal to collect the missing funds
and deposit it with the unit. The said proposal was placed before the
petitioner, who agreed to the same. Accordingly, a sum of Rs.13961.25/-
was added to the sum of Rs. 37,855/, by making a collection from the unit
personnel and it was deposited with the staff police. However, for the
consumption of the local police, they were informed that the said money
totaling to a sum of Rs.37,855/-, was found lying in the jungle and was
deposited with them.
12. Learned counsel for the respondents rightly submits that as the
Commanding Officer, it was the duty of the petitioner to keep a track of
the funds and when he had himself constituted the Board of Officers for
the purpose of checking and counting the money offered at the two
temples, then his blindfold reliance on K. Sadanandan, SW-1 would not
exonerate him for the reason that it remained his duty to obtain a report
from the Board of Officers with regard to the extent of collection for the
month of November, 1994, before counter signing the books of account.
13. On the last date of hearing, i.e. on 29th February, 2016, counsel for
the respondents had sought time to obtain instructions as to whether any
departmental proceedings were initiated against the Second-Officer in
Command, Sh. K. Sadanandan or he was left scot free. He informs us
today that in respect of the incident in question, an inquiry was conducted
not only against the petitioner but also against the other officers,
including Second-in-Command, Sh. K. Sadanandan and in so far as the
latter is concerned, he was inflicted with the punishment of reduction in
salary by one stage i.e. from Rs.10,300/- (as on 1-4-2001) to Rs.10,100/-
in the time scale of pay for a period of two years w.e.f. 1st December,
2001. It was also directed that Sh. K. Sadanandan, Second-in-Command
will not earn increments of pay during the period of reduction and that on
the expiry of this period, the reduction will have the effect of postponing
his future increments of pay.
14. After having satisfied ourselves that the petitioner alone was not
targeted and the respondents had taken appropriate action against the
other delinquent officers as well, we are of the opinion that the
punishment inflicted upon the petitioner, of withholding of one increment
for one year without cumulative effect, cannot be termed as
disproportionate to the misconduct alleged against him. Further, the
misconduct on the part of the petitioner is borne out from the fact that he
had admittedly counter signed the Regimental Cash Account Book in the
month of December, 1994 without obtaining a copy of the Board of
Officer's proceedings and without comparing the collection of the
amounts. For the aforesaid reasons, we are of the opinion that the
impugned order does not suffer from any illegality, arbitrariness and
perversity and nor is the punishment inflicted on the petitioner
disproportionate to the misconduct established against him.
15. The petition is accordingly dismissed as devoid of merits, while
leaving the parties to bear their own costs.
HIMA KOHLI, J
SUNIL GAUR, J
MARCH 17, 2016
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