JUDGMENT
B.J. Shethna, J.
1. The petitioner-State of Gujarat has challenged in this petition filed under Articles 226 / 227 of the Constitution of India the impugned judgment and order dated 7.12.1993 passed by the Gujarat Civil Services Tribunal, Gandhinagar (for short “the Tribunal”) partly allowing the Appeal No. 167/93 filed by the respondent-original appellant before it whereby the learned Tribunal interfered with the order of penalty imposed against the respondent-original appellant and reduced the penalty from dismissal to reducing to a lower stage in time scale of pay which the petitioner was getting on the date of his suspension for a period of 5 years with a direction that he shall not earn any increment of pay during the period of such reduction and with further direction that on the expiry of such period of 5 years the reduction will not have the effect of postponing the further increment of pay.
2. The respondent-original appellant had joined service in the Revenue Department on 8.11.1965. In 1985 he was deputed as Godown Manager at Dahod in Panchmahals district under Gujarat State Civil Supplies Corporation Ltd. There was a joint checking of stock in godown done by representatives of the District Supply Board and the Chartered Accountant on 30.9.1987. On that day no deficit in the stock was found, but between the period of 1.10.1987 and 6.10.1987, a deficit of 103.44 kgs. of palmoline oil worth Rs. 1,22,059.20 was found. The stock of the palmoline oil was sold by the present respondent-appellant Mr. Ashokukar Shantilal Doshi in black market and thereby he misappropriated public money of Rs. 1,22,059.20. This was detected on 6.10.1987 by the District Supply Officer when he had gone for surprise checking at Dahod godown with other officers when the respondent-original appellant was in-charge of the godown. It is to be noted that on 9.11.1987 the respondent-appellant had deposited the said amount of Rs. 1,22,059.20, which was misappropriated by him. Apart from this it was found that 55 empty barrels of palmoline oil were also found in excess and there was a deficit of seven empty tins of 15 Kgs. for which panchnama was made. Thereafter, on finding these irregularities, the District Supply Officer had recorded the statement of the present respondent-original opponent and other staff members of the godown. Show cause notice dated 20.10.1987 was issued to the present respondent, which was replied by him on 28.10.1987. It was for the first time he came out with a case that shortage in palmoline oil was due to leakage in the barrels. He has also come out with a case that he had later on deposited an amount of Rs. 1,22,059.20 under protest. Departmental proceedings were initiated against him in November, 1987 and thereafter he was placed under suspension on 10.12.1987. Thereafter he was served with charge sheet dated 15.12.1987 which was denied by reply dated 16.5.1988. On 16.1.1999 inquiry was entrusted to the Special Officer for departmental inquiry at Vadodara, who by his report dated 24.12.1991 found the respondent guilty for the charge Nos. 1 and 2, but did not find him guilty for the remaining charges. After receiving the report, he was served with show cause notice dated 28.4.1992 calling upon him to show cause as to why he should not be dismissed from service. He submitted his reply dated 3.8.1992 to the said show cause notice. After considering his reply his services were terminated by impugned order dated 20.12.1992. Aggrieved of this order of termination he approached the learned Tribunal by way of Appeal No. 167/93 which was partly allowed and penalty of dismissal was reduced to penalty of reduction in pay scale. The same is challenged in this petition.
3. Learned AGP, Mr. Dave for the State of Gujarat vehemently submitted that once the respondent was found guilty for serious charges then it was not open to the learned Tribunal to interfere with the order of penalty and reducing the same. He submitted that the Hon’ble Supreme Court has time and again held that the Tribunal has no jurisdiction to substitute the penalty. He further submitted that at the most the Tribunal should have referred the matter to the Disciplinary Authority for reconsidering the case of the respondent for lesser penalty, but in the instant case, the learned Tribunal has exercised its discretion and interfered with the order of penalty which was not proper, therefore, the impugned judgment passed by the learned Tribunal partly allowing the appeal be quashed and set aside. Mr. Dave further submitted that in any case when such serious charge of misappropriation of public fund is found proved, then merely because the respondent had later on deposited the amount, which he had misappropriated cannot be said to be a ground for reducing the penalty. He further submitted that the department was contemplating to prosecute the respondent by filing the criminal complaint against him for misappropriation but realising gravity of offence he had deposited the said amount, therefore, the department had not filed complaint against him and thought it fit to proceed against him only by way of departmental inquiry and in the departmental inquiry, on the basis of the available evidence, the authority came to the conclusion that the charges levelled against the respondent were of serious nature and once it is found to be proved then no other penalty except the penalty of dismissal can be passed, therefore, the impugned order of termination was passed. He submitted that the Tribunal ought not to have interfered with the order of penalty in appeal.
4. Learned counsel Mr. Bhatt for the respondent-original appellant, however, vehemently submitted that once the Tribunal exercised its discretion in favour of the respondents and reduced the penalty, then this court cannot sit in appeal over the decision of the Tribunal in a petition filed under Article 227 of the Constitution of India. He submitted that though the petition is labelled as petition under Arts. 226 and 227 of the Constitution of India, strictly speaking, it is a petition under Article 227 of the Constitution of India and the scope of which is very narrow and limited. He submitted that it is not open to this court to review the decision of the Tribunal in its jurisdiction under Article 227 of the Constitution of India. In support of his submission he has placed reliance on the following judgments of this court :-
(1) H.P.Thakore v. State of Gujarat reported in 20 GLR 109.
(2) H.L. Pandya v. Gujarat Agricultural University 1986 GLH (UJ) 32
Mr.Bhatt for the respondent relying on the judgment of the learned Single Judge of this court in H.P.Thakore’s case (supra) vehemently submitted that while imposing penalty of dismissal against the respondent, the authority was required to consider three vital aspects; (1) nature and magnitude of the established charge; (2) desirability or otherwise of retaining the Government servant in service in the context of the charges found proved against him; and (3) whether a penalty lesser than the extreme penalty of dismissal or removal would prove adequate, or not? There cannot be any quarrel with the principal laid down by this court in H.P.Thakore’s (supra). In the instant case, the respondent was a public servant. He was in-charge of the godown and on 30.9.1987 when the inspection was done, no deficit of stock was found, but in the inspection of 6.10.87 huge deficit of stock of palmoline oil worth Rs. 1,22,059.20 was found. The very fact that later on within a period of two months the respondent deposited the said amount of Rs. 1,22,059.20 suggests that he was guilty of the charges levelled against him. If at all he had not sold that stock of palmoline oil, then there was no need for him to deposit the said amount. It is nothing but an eye wash to say that he had deposited the said amount under protest. In fact, because of the amount being deposited by him the department took lenient view towards him and decided not to launch criminal proceedings for the offence of misappropriation under the Indian Penal Code. Once, the charge of misappropriation is found to be fully proved against him, then looking to the nature of the charge and magnitude of the case, in my considered opinion, except the penalty of dismissal, no other penalty could be imposed and it was rightly imposed by the authority. Such person, who misappropriated the public fund being in-charge of godown cannot be retained in service. Any leniency shown to him as it is done by the Tribunal in the instant case may send wrong signals to other employees. In such type of cases, at the cost of repetition, I may say that only extreme penalty of dismissal or removal was needed and in fact it was rightly awarded by the authority. It seems that the learned Tribunal was impressed by the defence of the respondent that due to leakage there was a deficiency of palmoline oil stock worth Rs. 1,22,059.20 was found. But, with utmost respect to the learned Tribunal it had not at all taken into consideration the relevant factors in the case which I have already pointed earlier viz. that on 30.9.1997 no deficit in the stock was there. But, it was found only on 6.10.1987 in another inspection and in leakage there cannot be deficit of such a huge stock of palmoline oil worth Rs. 1,22,059.20. It was not a case of negligence as found by the learned Tribunal. It was a deliberate act of misappropriation of huge public fund.
5. It may be stated that in case of H.P.Thakore (supra) the misconduct committed by the delinquent not at all stated in the judgment. Only relevant paragraphs of the judgment have been reported as ordered by the learned Single Judge in his judgment, therefore, I have called for the original judgment in case of H.P.Thakore (supra). From the judgment it appears that main allegation against the delinquent Mr. H.P.Thakore was of constantly remaining absent from duty. I fail to appreciate that how the judgment of Thakore’s case (supra) will apply on facts and in the circumstances of the present case. In fact, three principles laid down by the learned Single Judge in Thakore’s case would rather apply in this case for holding that the learned Tribunal committed grave error while partly allowing the appeal. It had not considered the three aspects of the case viz. (1) nature of magnitude of the established charge which was of misappropriation of huge public fund; (2) desirability of retaining such Government servant in service; and (3) adequacy of lesser punishment, while reducing the penalty. In fact, penalty of reduction in scale is not at all commensurate to the misconduct of misappropriation, which is found to be proved against the respondent. At the cost of repetition, I may state that in such type of cases punishment of dismissal could only be the adequate punishment and it was rightly awarded to the delinquent by the authority. Thus, interference by the Tribunal in appeal filed by the respondent-appellant was absolutely illegal and beyond its jurisdiction.
6. In the said head note nothing is mentioned about the misconduct etc., therefore, it is not possible for me to deal with the same in detail.
7. Once, it is found that the departmental authority, after considering the nature and magnitude of the established misconduct thought it fit not to retain the respondent in service and dismissed the petitioner from service, then in my considered opinion, the interference by the tribunal against such order of dismissal in the appeal was not proper and legal. In fact, charge of negligence was never levelled against the respondent. The charge was that he misappropriated huge public fund by disposing of stock of palmoline oil worth Rs. 1,22,059.20 in black market. Unfortunately, the learned Tribunal proceeded on the basis that the respondent was negligent and the charge of negligence was found to be proved against him and accepted his defence that such a huge loss of palmoline oil occurred due to leakage, which was a false defence.
8. In view of the above, this court has no option but to interfere with an order passed by the Tribunal in its limited supervisory jurisdiction under Article 227 of the Constitution of India. If such an order passed by the learned Tribunal is not interfered by this court in its jurisdiction under Article 227 of the Constitution of India, then it will be failing in discharging its duty.
In view of the above discussion, this petition is allowed and the impugned judgment and order passed by the leaned Tribunal 28.12.1992 is hereby quashed and set aside. Rule is made absolute. No order as to costs.