HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Writ Petition No : 15130 of 2005(S)
Ram Bhuwan Shukla
- V/s -
State of MP and others
Present : Hon'ble Shri Justice Rajendra Menon.
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Shri Rajneesh Gupta, learned counsel for the petitioner.
Smt. Sheetal Dubey, Government Advocate, for the
respondents.
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Whether approved for reporting: Yes / No.
ORDER
11/02/2011
Challenging the order-dated 8.11.2005 – Annexure P/1,
whereby the appeal filed by the petitioner under Rule 23 of the M.P.
Civil Services (Classification, Control and Appeal) Rules, 1966 has been
rejected, petitioner has filed this writ petition. Challenge is also made to
the order of punishment dated 20.7.2001 – Annexure P/2, by which
penalty of compulsory retirement, confirmation of the period of
suspension and recovery of Rs.1,19,796=50 has been ordered against the
petitioner.
2- Records indicate that petitioner was holding the post of
Accountant in the office of Divisional Ayurveda Officer, Rewa. On
4.7.1989, while working as Accountant, the Drawing and Disbursing
Officer, one Shri Ram Sharan Shrivastava, is alleged to have directed the
petitioner and one cashier – Shri Rampal Pandey, to go to the bank and
withdraw a sum of Rs.2,39,593=00. Petitioner is said to have gone to the
Bank and while returning from the Bank it seems that the aforesaid
2
amount was looted by certain unsocial elements from the scooter in
which the petitioner and Shri Rampal Pandey were travelling, as a result
of the aforesaid petitioner was suspended, a charge-sheet was issued to
him and after enquiry into the matter, petitioner has been punished as
indicated hereinabove. Apart from the petitioner, the cashier – Shri
Rampal Pandey has also been punished and the entire amount of
Rs.2,39,593=00 is being recovered – half from the petitioner and half
from Shri Rampal Pandey.
3- Records indicate that earlier petitioner had filed an
application before the State Administrative Tribunal challenging the
penalty order, but the petition was disposed of directing the petitioner to
file an appeal and the appellate authority to decide the appeal. The
appeal having been decided, petitioner has now filed this writ petition.
4- Shri Rajneesh Gupta, learned counsel for the petitioner,
inviting my attention to the General Financial Rules and Instructions, for
handling of cash as contained in Annexure P/14, argued that under Rule
53(5), it is the Drawing and Disbursing Officer who is the competent
authority, directing for withdrawal of cash and it is stated that if the
amount to be withdrawn is more than Rs.10,000/- then a Police Escort
has to be provided for disbursement of the amount. Referring to the note
appended to the Rule, which reads as under:
“Note 1- The responsibility for the money entrusted to a
peon or messenger is that of the drawing and disbursing
officer and he is personally responsible for any loss of
Government money occurring in non-observance of this
rule. He should, therefore, use his discretion in selecting the
person or persons and take the following precautions:-(a) xxx xxx xxx (b) xxx xxx xxx(c) When the amount to be handled exceeds Rs.10,000
the Nazir, or the Accountant, or the Cashier, as the
case may be should go to Bank/Treasury/Post Office,
accompanied by a police escort, as laid down in
3Home (Police) Department, Notification No.190-
4703-II-B(8), dated 16.1.1974.”Shri Rajneesh Gupta, learned counsel, argued that the entire
fault in this matter rests on the Drawing and Disbursing Officer, who has
not provided adequate police protection and has breached the statutory
rule. Inspite thereof the Drawing and Disbursing Officer has been
exonerated of all the charges and no punishment is imposed upon him.
Accordingly, contending that the petitioner is being punished with the
harsh punishment of compulsory retirement and recovery of the entire
amount alongwith confirmation of suspension for no fault of his,
petitioner seeks interference into the matter.5- Inviting my attention to an order of Division Bench of this
Court, in Writ Petition (S) No.432/2003 (M.K. Malviya Vs. State of
MP), decided on 6.11.2003 – Annexure P/15, Shri Rajneesh Gupta
argued that under similar circumstances when the Drawing and
Disbursing Officer was found to have been negligent in discharge of his
duty, the amount of recovery has been reduced by this Court by 50%
and, therefore, petitioner seeks interference into the matter.
6- Further, inviting my attention to the provisions of Rule
53(viii) and the judgment of another Bench of this Court, in the case of
Shrinivas Sharma Vs. State of MP and others, Writ Petition
No.640/1994, decided on 29.10.2008, Shri Rajneesh Gupta, learned
counsel for the petitioner argues that when the provisions of Rule 53 are
breached, then recovery from the petitioner is unsustainable and as done
by the learned Single Judge in the case of Shrinivas Sharma (supra),
Shri Gupta prays for interference into the punishment on the ground that
the punishment is too harsh and not warranted. Finally, Shri Rajneesh
Gupta argued that even if the entire allegation against the petitioner is
held to be correct, then the same would only amount to negligence in the
discharge of duty or error of judgment on the part of the petitioner and
the same may not be a ‘misconduct’ for which such a harsh punishment
should be imposed. Inviting my attention to the principles laid down by
the Supreme Court, in the case of Union of India Vs. J. Ahmed, (1979)
42 SCC 286, followed in the case of Inspector Prem Chand Vs.
Government of NCT of Delhi and others, (2007) 4 SCC 566, Shri
Rajneesh Gupta argues that at best it would be only a case of negligence
on the part of the petitioner and not a case of ‘misconduct’. Accordingly,
he submits that the penalty imposed and the punishment is too harsh and,
therefore, the same be interfered with.7- Smt. Sheetal Dubey, learned Government Advocate for the
State, taking me through the findings of the enquiry and the enquiry
report submitted that the petitioner did not carry out his duties properly,
petitioner alongwith the cashier – Shri Rampal Pandey and a peon were
sent to get the amount from the Bank, but the petitioner after getting the
amount from the Bank took the briefcase in which the cash was taken
from Shri Rampal Pandey, sent the peon to office in a rickshaw and
came back with Shri Rampal Pandey in a scooter, driven by Shri Rampal
Pandey. Accordingly, contending that the petitioner is responsible for the
entire loss to the government and in ordering recovery the respondents
have not committed any error, prayer made is that the petition be
dismissed.8- I have heard learned counsel for the parties and perused the
records.9- As far as the facts are concerned, there is no dispute with
regard to the same. It cannot be disputed that under Rule 53 of the
General Instructions for handling Cash, the sole responsibility for
ensuring proper withdrawal of cash and its transportation is on the
Drawing and Disbursing Officer. When the cash amount to be
withdrawn is more than Rs.10,000/-, it was the duty of the Drawing and
Disbursing Officer to ensure that proper police protection is given to the
employees, who are sent to the Bank or Treasury for withdrawal of the
amount. In this case, the Drawing and Disbursing Officer has been
negligent in the discharge of his duties in as much as he did not provide
adequate police protection for bringing the cash from the Bank.
Respondents’ contention that the petitioner did not ask for police
protection cannot be accepted for the simple reason when the statutory
5rule mandates the Drawing and Disbursing Officer with the aforesaid
responsibility. That being so, it is a case where there is initial breach of
rule by the Drawing and Disbursing Officer and the Drawing and
Disbursing Officer is exonerated without any action being taken against
him. This is a discriminatory attitude of the respondents and cannot be
upheld by this Court.10- That apart, the allegation against the petitioner is not with
regard to any malafide act or ill-will or ill motive on his part for
usurping the amount withdrawn from the Bank. Records indicate that for
the loot in question a First Information Report was lodged and the Police
after investigation did not find involvement of the petitioner in the
incident of looting of the amount. That being so, there is no ill-will or ill
motive on the part of the petitioner in dealing with the money. If the
entire allegations levelled against the petitioner on the fact of it is
accepted, it would be nothing but a case of gross negligence or error or
judgment on the part of the petitioner in as much as for coming back
from the Bank on the scooter of Shri Rampal Pandey, the cashier,
petitioner took the briefcase from the cashier and asked the peon to go
back in the rickshaw and came to the Bank on the scooter. In the absence
of any ill motive or malafide intention on the part of the petitioner, this
could be an act of negligence or error of judgment on the part of the
petitioner.11- In the case of Inspector Prem Chand (supra), the meaning
of the word ‘misconduct’ and the act of ‘negligence or carelessness’ is
taken note of and the matter is so dealt with from paragraphs 9 to 12:“9. Before adverting to the question involved in the
matter, we may see what the term ‘misconduct’ means.10. In State of Punjab and Ors. v. Ram Singh Ex.
Constable, [1992] 4 SCC 54, it was stated:‘5. Misconduct has been defined in Black’s Law
Dictionary, Sixth Edition at page 999, thus:‘A transgression of some established and
definite rule of action, a forbidden act, a dereliction
6from duty, unlawful behavior, willful in character,
improper or wrong behavior, its synonyms are
misdemeanor, misdeed, misbehavior, delinquency,
impropriety, mismanagement, offense, but not
negligence or carelessness.’Misconduct in office has been defined as:
‘Any unlawful behavior by a public officer in
relation to the duties of his office, willful in
character. Term embraces acts which the officer
holder had no right to perform, acts performed
improperly, and failure to act in the face of an
affirmative duty to act.’11. In P. Ramanatha Aiyar’s Law Lexicon, 3rd edition, at
page 3027, the term ‘misconduct’ has been defined as under:‘The term ‘misconduct’ implies, a wrongful intention,
and not a mere error of judgment.* * *
Misconduct is not necessarily the same thing as
conduct involving moral turpitude.The word ‘misconduct’ is a relative term, and has to
be construed with reference to the subject matter and the
context wherein the term occurs, having regard to the scope
of the Act or statute which is being construed. Misconduct
literally means wrong conduct or improper conduct.[See also Bharat Petroleum Corpn. Ltd. v. T.K. Raju:
(2006) 3 SCC 143]12. It is not in dispute that a disciplinary proceeding was
initiated against the appellant in terms of the provisions of
the Delhi Police (Punishment and Appeal) Rules, 1980. It
was, therefore, necessary for the disciplinary authority to
arrive at a finding of fact that the appellant was guilty of an
unlawful behavior in relation to discharge of his duties in
service, which was willful in character. No such finding
was arrived at. An error of judgment, as noticed
hereinbefore, per se is not a misconduct. A negligence
simpliciter also would not be a misconduct. In Union of
India and Ors. v. J. Ahmed, (1979) 2 SCC 286, whereupon
Mr. Sharan himself has placed reliance, this Court held so
stating:‘II. Code of conduct as set out in the Conduct
Rules clearly indicates the conduct expected of a
7member of the service. It would follow that conduct
which is blameworthy for the Government servant in
the context of Conduct Rules would be misconduct.
If a servant conducts himself in a way inconsistent
with due and faithful discharge of his duty in service,
it is misconduct (See: Pierce v. Foster 17 Q.B. 536,542). A disregard of an essential condition of the
contract of service may constitute misconduct [See:Laws v. London Chronicle (Indicator
Newspapers), (1959) 1 WLR 698]. This view was
adopted in Shardaprasad Onkarprasad Tiwari v.
Divisional Superintendent, Central Railway, Nagpur
Division, Nagpur – (1959) 61 Bom LR 1596; and,
Satubha K. Vaghela v. Moosa Raza, (1969) 10 Guj
LR 23. The High Court has noted the definition of
misconduct in Stroud’s Judicial Dictionary which
runs as under:‘Misconduct means, misconduct arising from
ill motive; acts of negligence, errors of
judgment, or innocent mistake, do not
constitute such misconduct.’
[Emphasis supplied]”
12- If the act of the petitioner is analysed in the backdrop of the
aforesaid, it can be safely construed that the admitted act of the
petitioner is not an act of misconduct, but is only an act of negligence on
his part and, therefore, it was not a case where he could be punished for
the act of misconduct. As the action of the petitioner does not amount to
any misconduct, the punishment of compulsory retirement cannot be
imposed upon the petitioner because the alleged misconduct against the
petitioner is not made out.
13- For the negligence on the part of the petitioner and the
careless manner of doing duty, petitioner is already punished by ordering
recovery of 50% of the amount and further a punishment of stoppage of
one increment without cumulative effect will meet the ends of justice,
for the act of commission and omission on the part of the petitioner.
Normally a writ court is not supposed to interfere with the orders of
punishment imposed by the disciplinary authority, but in this case the
petitioner has already retired from service, he is more than 69 years of
8
age and he is litigating the matter since 1989. In the initial round of
litigation, the matter was remanded back to the respondents for
reconsideration, the respondents after reconsideration have rejected his
appeal vide Annexure P/1, on 8.11.2005 and this petition is pending for
more than six years and not it is not proper to remand the matter back for
further reconsideration by the authorities concerned. Instead, in the
totality of the facts and circumstances of the case and taking note of the
special features that are available in the case, it is a fit case where this
Court should interfere and modify the punishment or the action taken
against the petitioner.
14- Accordingly, this petition is allowed. The order of
compulsory retirement is quashed so is the order of suspension.
Respondents are directed to treat the petitioner to have worked till he
completed the age of superannuation and treat him to have retired on
attaining the age of superannuation. All salary and allowances, including
the pay for the suspension period, be paid to the petitioner after
deducting the pension and subsistence allowance already paid. However,
recovery of Rs.1,19,796=50 ordered from the petitioner is not interfered
with, the recovery is upheld as the petitioner is negligent for having
caused this loss to the Government and a substituted penalty of stoppage
of one increment without cumulative effect for the act of commission
and omission of the petitioner is sufficient to meet the ends of justice.
15- Respondents are directed to comply with the order passed
and grant the benefit consequent thereof to the petitioner within a period
of two months from the date of receipt of certified copy of this order.
16- With the aforesaid observations, the petition stands allowed
and disposed of.
( RAJENDRA MENON )
JUDGE
Aks/-