Narayan Jha vs The Bihar State Power Holding ...
2023 Latest Caselaw 5074 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 Letters Patent Appeal No.1100 of 2016
                                    In
              Civil Writ Jurisdiction Case No.6177 of 2015
======================================================

Narayan Jha, son of Late Maheshwar Jha, resident of village + P.O. Gosain Gaon, P.S. Gopalpur, District-Bhagalpur.

... ... Petitioner- Appellant/s Versus

1. The Bihar State Power Holding Company Limited, Vidyut Bhawan, Bailey Road Patna through its Deputy General Manager (Human Resources), Vidyut Bhawan, Bailey Road, Patna.

2. The Chairman-cum-Managing Director, Bihar State Power (Holding) Company Limited, Vidyut Bhawan, Bailey Road, Patna.

3. The Director (Administration), Bihar State Power (Holding) Company Limited, Vidyut Bhawan, Bailey Road, Patna.

4. The Managing Director, North Bihar Power Distribution Company Limited, Vidyut Bhawan, Bailey Road, Patna.

5. The General Manager (Human Resource and Administration), North Bihar Power Distribution Company Limited, Vidyut Bhawan, Bailey Road, Patna.

6. The Joint Secretary, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna.

... ... Respondents-Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Siyaram Sahi, Advocate Mr. Makardhwaj Upadhyay, Advocate Ms. Shaly Kumari, Advocate

For the Respondent/s : Mr. Vinay Kirit Singh, Senior Advocate Mr. Vijay Kumar Verma, Advocate Mr. Akhileshwar Singh, Advocate Mr. Kunal Tiwary, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY

CAV JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Patna High Court L.P.A No.1100 of 2016 dt. 05-10-2023

Date : 05-10-2023

The appellant, who was the petitioner, was issued with

an order dated 18.09.2012 by which 100% of his pension and

the entire gratuity, due to him on his retirement, have been

forfeited on a permanent basis, for misconduct alleged and

proved at a domestic enquiry. The order impugned is produced

as Annexure-30 in the writ petition and an appeal also turned

unsuccessful as is revealed from Annexure-31 in the writ

petition. The learned Single Judge also dismissed the writ

petition filed against the order of penalty, finding the penalty to

be permissible under Rule 43(b) of the Bihar Pension Rules.

2. We have heard learned counsel appearing for the

appellant Sri Siyaram Sahi and learned Senior Counsel Sri

Vinay Kirti Singh, who appeared for the respondent-Board.

3. The learned Single Judge at the outset noticed the

well-heeled principle of judicial review against the order of

punishments, arising out of departmental proceeding being very

limited; wherein the Courts do not weigh the evidence nor go

into the sustainability of the charges, but only interferes if it is a

case of no evidence. The appellant was found to have been

assigned the duties of a Billing Clerk though his designation

was Correspondence Clerk. The allegation was of Patna High Court L.P.A No.1100 of 2016 dt. 05-10-2023

misappropriation of Rs.16,65,331/- which was detected in the

course of a special audit. There were also other defalcations

noticed for which proceedings were taken against other

responsible persons. The allegation against the appellant was

supported by a report of the special audit team, comprised of

two auditors, who have been examined before the enquiry

officer. Despite cross-examination of one of them, the appellant

was not able to shake their testimony. The appellant's claim of

non-supply of documents cannot be sustained since the third

copy of the DCR, which is prepared in triplicate, was in the

custody of the appellant and he had caused it to disappear.

4. The findings in the enquiry report and the

contention in defence of the delinquent employee, the appellant,

were said to have been elaborately dealt with by the disciplinary

authority, which order produced as Annexure-30 was extracted

in the judgment. It was found that there was sufficient evidence

to substantiate the charges of misappropriation against the

appellant, which stood proved and every single defence was

examined not only by the enquiry officer but also by the

disciplinary authority. The receipt of the DCR by the appellant

having been proved by the counter signature in the ledger, he

had made the counter foils to disappear was the finding. It was Patna High Court L.P.A No.1100 of 2016 dt. 05-10-2023

found that the appellant in the capacity of the Billing Clerk has

misappropriated huge amounts. It was found that there was no

violation of principles of natural justice or statutory regulations

regarding the conduct of an enquiry nor consideration of any

extraneous material. The conclusions of the authority were not

arbitrary or capricious and the evidence led was sufficient to

find the appellant guilty. The findings of the enquiry officer, as

affirmed by the disciplinary authority, were upheld. The

mitigation sought regarding quantum of punishment was also

looked into. It was found that Rule 43(b) of the Bihar Pension

Rules permit such punishment of forfeiture of the entire

retirement benefits. The appellate authority's order was also

extracted and it was affirmed that there is no cause for any

mitigation of the penalty imposed.

5. At the hearing of the appeal, we directed the

respondent-Board's Senior Counsel to produce a copy of the

enquiry report which has been produced across the bar and it

has been marked by us in this appeal, as Court Exhibit-C-1. The

allegations levelled against the appellant are evident from the

enquiry report, which are in the form of six charges. The first

charge was a receipt book in triplicate called the DCR having

been handed over to the Assistant Electrical Engineer/Cashier Patna High Court L.P.A No.1100 of 2016 dt. 05-10-2023

which was received from the Electricity Supply Division,

Katihar. Charge No.2 was with respect to, again, the Assistant

Electrical Engineer, Electricity Supply Sub-Division, Katihar

having received a receipt book by signing the Divisional Stock

Book, which was not recorded in the stock register of the sub-

divisional office. Charge No.3 was with respect to a receipt

received book by one, Vasudev Prasad Yadav, then Accounts

Assistant for collection at Kursela Camp, which receipt book

was the subject of a theft reported by the Accounts Assistant to

the Assistant Electrical Engineer, who lodged first information

before the police. Charge No.4 again was with respect to the

issuance of a receipt book to the Accounts Assistant which was

found missing from the custody of the Accounts Assistant, based

on which another FIR was registered. Charge No.5 was with

respect to a receipt book obtained from the Electricity Supply

Division, Katihar, without naming the person who received it. It

has to be noticed that Charges no.1 to 5 does not mention the

appellant having received the receipt book. The only receipt

book received by the appellant, as alleged in the charge sheet, is

Money Receipt Book No.743 with Receipt No.148401 to

148600 obtained from Electricity Supply Division, Katihar by

the appellant himself. The facts alleged in Charge No.6 are Patna High Court L.P.A No.1100 of 2016 dt. 05-10-2023

violation of Article 6.96 of Part V of the Board's Financial and

Accounting Code. It has also been alleged that unautrhorized

use of receipt book in any office leads to an additional

embezzlement and criminal conduct. We also have to specify

that though every charge speaks of a revenue collection, neither

was any of the receipts on which such collection is allegedly

made, were produced before the enquiry officer, nor was there

any enquiry conducted from the persons from whom the

collections were alleged to have been made.

6. We specifically notice Charge No.1 which speaks

of a receipt of five money receipt books, out of which

allegations are raised with respect to four money receipt books.

The used money receipts are specifically indicated and the

amount collected on account of energy sale also specified.

However, there is nothing to show that these amounts were

collected by the appellant nor are the receipts produced before

the enquiry officer. The enquiry report, the translated copy of

which is produced before us, does not speak of any documents,

the verification of which proved the defalcations alleged against

the appellant. The appellant is said to have requested the third

copy of the money receipt, DCR and the photo copy of the

consumer accounts which were not made available. The finding Patna High Court L.P.A No.1100 of 2016 dt. 05-10-2023

of the enquiry officer was that the appellant had nothing to say

in defence and despite threatening an ex parte proceeding, there

was no cross-examination done of the witnesses.

7. The Board's witnesses who were in the Audit Team

was specifically named, one of whom was not cross-examined.

A perfunctory statement has been made in the enquiry report

that "no evidence has been produced against the allegations

levelled by the Board against the accused Mr. Narayan Jha,

then Correspondence Clerk, to prove that the allegations

levelled against the accused are wrong even in the written

arguments by the presenting officer of the prosecution, the

charges against accused Sri Jha have been upheld." We cannot

but observe that the enquiry officer has totally misdirected

himself in finding that the allegations have to be disproved by

the delinquent employee, without the department offering any

proof to substantiate such allegations.

8. The Senior-in-Charge, Audit, one Mr. Rajendra Jha

who was examined spoke of the Board's Financial and Accounts

Code and the issuance of receipts which are to be prepared in

triplicate and the daily amounts along with the counter foils

which are to be handed over to the Cashier. The daily

collections are checked and kept by the Cashier in a chest, the Patna High Court L.P.A No.1100 of 2016 dt. 05-10-2023

keys of which are with the Cashier and the Assistant Electrical

Engineer. The contention of the delinquent employee was that

the FIRs regarding the theft and the missing of receipt books

indicates that this was the reason for any unauthorized

collection, if at all made, for which the appellant cannot be held

responsible.

9. The enquiry officer had referred to various clauses

in the Finance and Accounts Code, without detailing the facts

which would lead to establishment of the defalcation of amounts

alleged against the appellant, which also led to the violation of

the various provisions. It was found by the enquiry officer that

the procedure was of the daily revenue collection challan being

counter signed by the Assistant Electrical Engineer and the

deposit of cash being made to the Accounts Assistant, by the

Bill Collector. It was alleged that the accused produced no

evidence to establish the remittance having been made. We

cannot but, again, immediately observe that the question of

proof being offered by the delinquent employee arises only after

the department establishes that there were collections made by

the delinquent employee. If the counter foils were not available,

then on what basis allegation of defalcation was made against

the appellant, is not clear and in that circumstance the amount of Patna High Court L.P.A No.1100 of 2016 dt. 05-10-2023

defalcation also could not have been determined.

10. The enquiry officer also found that the work of the

appellant was not correctly monitored by the Assistant Electrical

Engineer which brings forth serious supervisory lapses,

especially when the appellant, who was posted as a

Correspondence Clerk, was given the responsibility of revenue

collection and verification having not been done of the money

receipt books, issued by the Assistant Electrical Engineer. The

enquiry officer has, without any substantiating evidence asserted

that the delinquent employee had used the receipt books which

were stolen from the Kursela Camp without reference to the

conclusion of the investigation as per the FIR registered. The

theft of the receipt books or the missing of another receipt book

was not alleged as that engineered by the appellant nor is he

established to be an accused in the crime registered.

11. We find absolutely no evidence against the

appellant, having been dealt with by the enquiry officer, but for

noticing the procedure to be followed from the Finance and

Accounts Code and reliance placed on the unsubstantiated

deposition of the witnesses. The audit report even if produced

before the enquiry officer, it was not supplied to the delinquent

employee. There is also no reference to the contents of the audit Patna High Court L.P.A No.1100 of 2016 dt. 05-10-2023

report in the enquiry report.

12. The allegations levelled as specific charges against

the delinquent employee, as we noticed at the outset, does not at

all indicate the delivery of the receipt books to the appellant.

There is nothing produced to show that the appellant who was

posted as Correspondence Clerk was entrusted with the work of

a Billing Clerk. There is also no evidence of any collection of

amounts by the appellant; which collection has to be from the

consumers. If such collections were not remitted at the office as

per the procedure delineated in the Financial Code, then

definitely there would have been complaints raised by the

consumers; none of which is even referred to in the charges or

brought forth in the enquiry conducted. There is also no

evidence as to how the Board arrived at the amount alleged to

have been defalcated by the delinquent employee.

13. We have also looked into the translated copies of

the orders of the disciplinary authority and the appellate

authority, which have been translated by the Translation Wing of

the Registry; produced & marked in this appeal as Court

Exhibits-C-2 and C-3 respectively. It is trite that the

Disciplinary Authority also could look into the evidence led at

the enquiry and arrive at an independent finding. Patna High Court L.P.A No.1100 of 2016 dt. 05-10-2023

14. We have also gone through the order of the

disciplinary authority which has been extracted by the learned

Single Judge in the impugned judgment. We cannot but find that

the order of the disciplinary authority is also based on surmises

and conjectures. The delinquent employee had specifically

pleaded that there is absolutely no evidence except the audit

report presented by the prosecution, based on which the charges

cannot be considered to have been proved. He also contended

that he was not a Bill Collector and only was intermittently

given the said duties which he carried out diligently under the

supervision of senior officials. There was absolutely no

evidence as to receipt book having been received by the

delinquent nor can he be held responsible for the theft of one of

the receipt books and the missing of another receipt book. He

had in fact given the receipts/DCR with the money collected to

the Cashier and it was the Assistant Electrical Engineer and the

Cashier who were responsible accordingly.

15. The Disciplinary Authority merely found that there is

evidence to establish the defalcation, but without any discussion of

such evidence. The Disciplinary Authority found the charges framed

against the delinquent employee are with respect to the details of the

revenue collected which were not found in the cash book Patna High Court L.P.A No.1100 of 2016 dt. 05-10-2023

and deposited in the Bank. In the enquiry, the Cashier was not

examined nor was the Assistant Electrical Engineer. The only

witness proffered by the Department were the auditors. It was

also found by the Disciplinary Authority that involvement in the

embezzlement against the delinquent stood proved by the

investigating officer. As we found the enquiry report does not

proffer any such proof based on evidence.

16. The Appellate Authority's order merely presumed

that in the process of misappropriation, receipt book was

received without demand letter; indulged in by the appellant and

other staff and corresponding entries were not made in the

relevant register. It was categorically found that the matter does

not arise due to complaint of the consumer, but the third copy of

the money receipt and DCR has not been returned nor is the

collected amount deposited.

17. As we find from the enquiry report, there is

nothing to indicate that the receipt books were obtained by the

delinquent employee. The receipt books were obtained even as

per the charges framed against the delinquent by the Assistant

Electrical Engineer and the Accounts Assistant who were also

responsible for bill collection and deposit of money to the

account of the Board. The Accounts Assistant has registered an Patna High Court L.P.A No.1100 of 2016 dt. 05-10-2023

FIR with respect to theft of a receipt book and another FIR with

respect to the missing of a receipt book. Both these FIRs were

not produced before the enquiry officer and there is nothing to

hold the delinquent employee responsible for such theft or

missing. As we noticed, while dealing with the enquiry report

there is not even an allegation of receipt of money from the

consumers. It is not clear as to how the amounts were quantified

to allege a misappropriation against the employee. Under

Charge No.1 specific money receipts are mentioned against

which the amount of collection on account of energy sale is also

noticed. There is no evidence led as to from whom such

collections were made and how the amounts were computed to

make the specific allegation of misappropriation against the

appellant. Even such an allegation of quantification of amount

with reference to receipt numbers is not made against the

delinquent employee in the other five charges levelled against

him. There is absolutely no evidence led as to how the

quantification of amounts mentioned in each charge has been

arrived at.

18. We find the enquiry having not found the

delinquent to have received any receipt books or

misappropriated the amounts collected from the consumers. The Patna High Court L.P.A No.1100 of 2016 dt. 05-10-2023

only evidence produced before the enquiry officer was the audit

report based on which the delinquent employee was proceeded

against. In fact, the specific procedure, as pointed out by the

Auditor from the Board's Financial and Accounting Code

speaks of the DCR being prepared in triplicate and the money

collected along with the third counter foil being produced before

the Cashier who keeps the amount in the chest maintained under

the supervision of the Assistant Electrical Engineer. The keys of

the chest were with the Cashier and the Assistant Electrical

Engineer and the collections are to be deposited by the Cashier

on the same day or on the very next day. If the procedure was as

delineated above, the Cashier and the Assistant Electrical

Engineer was also responsible for the defalcation. They were

not even examined as witnesses before the enquiry officer.

There is no evidence of the appellant having been entrusted with

bill collection. He admits it but asserts that the counter foils

with cash were handed over to the Cashier.

19. We are of the opinion that the enquiry officer, the

disciplinary authority and the appellate authority found the

delinquent employee/petitioner/appellant herein to be guilty of

the charges levelled against him; on no evidence. We set aside

the order withholding of 100% pension. The appellant retired Patna High Court L.P.A No.1100 of 2016 dt. 05-10-2023

while he was under suspension. The appellant shall be paid the

entire wages minus the subsistence allowance during the period

of his suspension. The appellant also shall be entitled to the

entire retirement benefits which shall be computed and the same

paid within three months from today. The appellant shall also be

entitled to further pension as provided under the Bihar Pension

Rules.

20. The Letters Patent Appeal stands allowed setting

aside the order of the learned Single Judge as also the order of

punishment imposed on the appellant.

                                                                 (K. Vinod Chandran, CJ)

                      Partha Sarthy, J.            I agree.


Sunil/-                                                              (Partha Sarthy, J)
AFR/NAFR
CAV DATE                26.09.2023
Uploading Date          05.10.2023
Transmission Date