ORDER
G. Bikshapathi, J.
1. The Writ Petition is filed for quashing the order of dismissal passed by the 2nd respondent dated: 3-6-1988 as confirmed by the 1st respondent dated 7-2-1992.
2. The facts relevant to. the case are that the petitioner was working as Bench Clerk No. 2 in Criminal Section in the Court of the Munsif Magistrate, Yemmiganoor. He worked in the said capacity from 7-12-1983 to 7-12-1986. Thereafter he was transferred to the Court of Munsif Magistrate, Atmakur. While so, he was kept under suspension pending enquiry by the 2nd respondent and thereafter appointed the Subordinate Judge, Adoni as an Enquiry Officer by proceedings dated 12-8-1987. the Enquiry Officer framed two charges against the petitioner. I will refer to the details of the charges at a later stage. Four witnesses were examined in support of the charges while one witness was examined on behalf of the employee. The Enquiry Officer found that the petitioner was guilty of receiving the amount unauthorisedly. But, however in respect of 2nd charge he exonerated the petitioner. The 2nd respondent who is the disciplinary authority after considering the Enquiry Report issued proceedings dated 18-12-1987 directing the Enquiry Officer again to conduct the enquiry and amend the 2nd charge suitably, thereafter the Enquiry Officer conducted the enquiry for the 2nd time as per the guidelines issued by the 2nd respondent However, in his additional report he confirmed his finding on the second charge finding that there is no additional evidence warranting the other conclusion. The second respondent again perused the said report and while concurring the conclusion of the Enquiry Officer on the first charge differed from the finding of the Enquiry Officer on the second charge and he held the 2nd charge as proved. Accordingly, by proceedings dated 3-6-1988 he passed the orders dismissing the petitioner from service. Aggrieved by the said order of dismissal the petitioner filed Writ Petition No. 9934/88 and this Court by orders dated 26-3-1991 disposed of the Writ Petition directing the petitioner to file the appeal under C.C.C.A. Rules, Thereupon the petitioner filed the appeal before the 2nd (sic. 1st) respondent. However by orders dated 7-2-1992, the appeal was dismissed. Thus, the petitioner challenged the order of dismissal passed by the 2nd respondent as confirmed by the 1st respondent in this Writ Petition.
3. The learned counsel for the petitioner submits that the action of the 2nd respondent in directing the Enquiry Officer to reconduct the enquiry by amending and framing the second charge is wholly illegal and arbitrary. He . also submits that the findings of the Enquiry Officer on first charge is not based on any evidence and hence the findings are perverse. It is also the contention of the learned counsel that the 2nd respondent gravely erred in disagreeing with the findings of the Enquiry Officer on the second charge and that it is a case of bias Writ at large. Finally submits that even assuming that the charges are proved, the punishment imposed on the petitioner is shockingly disproportionate and highly unconscionable. On the other hand, the learned counsel for the respondent submits that the enquiry conducted against the petitioner is perfectly in accordance with the C.C.C.A. Rules and that the 2nd respondent is entitled to direct the Enquiry Officer to conduct the enquiry if the Enquiry Officer failed to consider the relevant material on record and to frame the charges in a correct fashion. He also submits that the charges as proved against the petitioner are serious in nature and therefore the punishment as imposed on the petitioner is quite legal and valid. Thereis no illegality nor irregularity in the proceeding of the 2nd respondent or in the order of the appellate authority. Hence, he submits that the Writ Petition is liable to be dismissed.
4. Before dealing with the matter, it is necessary to extract the charges as framed against the petitioner vide charge-sheet dated 28-8-1987.
Charge No. 1 That you Sri K. Abdul Gaffoor, formerly Junior Assistant, ‘ Court Yemmiganur at charge No. 1: that you sri K.Abdul Gaffoor, formerly junior Assistant Munsif Magistrate’s Court, Yemmiganur at present Junior Assistant, Munsif Magistrate’s Court, Atmakur under suspension, on or about 18th day of May, 1985 received an amount of Rs. 925/-from the Station House Officer, Madhavaram Police Station, being the fine amount in the following Summary Trial Cases.
Rs.
1. S.T.C. 728/84 20.00 2. S.T.C. 729/84 40.00 3. S.T.C. 744/84 120.00 4. S.T.C. 745/84 20.00 5. S.T.C. 746/84 100.00 6. S.T.C. 747/84 120.00 7. S.T.C. 748/84 140.00 8. S.T.C. 750/84 100.00 9. S.T.C. 752/84 20.00 10. S.T.C. 753/84 20.00 11. S.T.C. 754/84 100.00 12. S.T.C. 763/84 50.00 13. S.T.C. 764/84 25.00 14. S.T.C. 765/84 25.00 15. S.T.C. 766/84 25.00
and on 31-1-1986 you enterad in the Fines Register the fine amounts of Rs. 120/- concerned in 9.T.C.N0.744/S4, Rs. 20.00 in S.T.C. No. 745/84, Rs. 100.00 in S.T,C. No. 746/84, Rs. 120.00 In S.T.C. No. 747/84 and Rs. 140.00 in S.T.C.No. 748/84 and remitted the same into the Sub-Treasury, Yemmiganur. On 3-2-1986 and on 6-8-1986 you entered in the Fine Register the sum of Rs. 40.00 towards S.T.C. No. 729/84, Rs. 20.00 in S.T.C. No. 728/84, Rs. 25.00 in S.T.C. No. 765/84, Rs. 25.00 in S.T.C. No. 764/84, Rs. 25.00 in S.T.C. No 766/84, Rs. 100.00 in S.T.C. No. 750/84, Rs. 60.00 in S.T.C. No. 726/84 and Rs. 100.00 in S.T.C. No. 719/84 and remitted the same into the Sub-Treasury, Yemmiganur. On 7-8-1986 and on 26-9-1986 you gave Rs. 20.00 concerned in S.T.C. No. 752/84, Rs. 20.00 in S.T.C. No. 753/84, Rs. 100.00 in S.T.C. No. 754/84 and Rs. 50.00 in S.T.C. No. 763/84 to Sri B. Krishna Murthy, Junior Assistant, Munsif Magistrate’s Court, Yemmigapur, and it was remitted into the Sub-Treasury, Yemmiganur on 27-9-1986 under Challan No. 775 and thus you have temporarily misappropriated the above amounts; and
Charge No. 2: That you Sri K.. Abdul Gaffoor, former Junior Assistant, Munsif Magistrate’s Court, .Yemmiganur at present junior Assistant, Munsif Magistrate’s Court, Atmakur under suspension on or about the 29th day of November, 1985 received Rs. 1,270.00 from Sri Rahmathullah Khan, P.C. 1536 from Peddathumbalam Police Station being the fine amount in Petty Case Nos. 319/85 to 445/1985 corresponding to S.T.C. Nos. 731/85 to743/1985 on the file of the Munsif Magistrate’s Court, Yemmiganur and you gave the amount to Sri M. Bala Krishna Reddy, on 29-4-1986 and he remitted the same into the Sub-Treasury on 30-4-1986 and you thereby committed temporary misappropriation of the said amount”
Subsequently, on directions issued by the 2nd respondent, the 2nd charge was amended by the Enquiry Officer, which is extracted below:
“That you Sri K. Abdul Gaffoor, former Junior Assistant Munsif Magistrate’s Court, Yemmiganur at present Junior Assistant, Munsif Magistrate, Atmakur under suspension received Rs. 1270-00 from Sri Rahamathullah Khan, P.C. 1536 of PeddaThumbalam Police Station on 29-11-1985 being the fine amount in Petty Case Nos. 319/1985 to445/1985 corresponding to STC Nos. 731/85 to 743/1985 on the file of the Munsif Magistrate, Yemmiganur and you have issued a receipt for Rs. 1230-00 to Sri Rahamathulla Khan, P.C. 1536 of Peddathumbalam Police Station, but you have retained the amount with you and gave the amount to the clerk, Sri M. BalaKrishna Reddy on 29-4-1986 and he entered it in the fines register on the same day and remitted the amount into the Sub-Treasury on 30-4-1986 and you thereby committed temporary misappropriation of the said amount”
5. The issue that falls for consideration is whether the orders of dismissal passed by the 2nd respondent dated: 3-6-1988 as confirmed by the 1st respondent are legal and valid.
6. The learned counsel for the petitioner submits that the very procedure adopted by the 2nd respondent-disciplinary authority is wholly illegal, arbitrary and contrary to A.P. Civil Services (CCA) Rules, 1963. The said rules contemplate that the disciplinary authority either shall conduct the enquiry for himself or appoint an Enquiry Officer. The Enquiry Officer shall conduct the enquiry as per the procedure laid down under the Rules keeping in view the principles of natural justice. When once the enquiry officer has been appointed, it is the prerogative of the officer to frame the charge-sheet and record the evidence. Thereafter report of the Enquiry Officer is submitted to the disciplinary authority. The learned counsel submits that there is no provision enabling the 2nd respondent to frame a charge in particular manner. In the instant case, the Enquiry Officer submitted his report in which the charge No. 2 was not established. However, the 2nd respondent issued proceedings directing the Enquiry Officer to prove (sic. frame) charge No. 2 properly and conduct the re-enquiry. This procedure is not to be framed (sic. found) in the rules. I have perused the order dated 18-12-1987 directing further enquiry. However, I am not satisfied the way in which the 2nd respondent dealt with the enquiry proceedings. Having appointed the Enquiry Officer, he cannot guide and goad him till such time the charges are established. It is always open for the 2nd respondent to disagree with the finding of the Enquiry Officer. An usual (sic. unusual) procedure was adopted by the 2nd respondent. He transmits some more documents which were in his possession and again asks the Enquiry Officer to confront the said documents. The relevant para is extracted below:
“The Enquiry Officer in his report observed that the served summons in the S.T.C. cases (as noted in page-8 of his report), are not available in the records except in S.T.C. 729/84,752/84 and 764/84. Further he observed that there is no evidence to show as to when the Police received the summons from the Court. The summons served in STC Nos. 731/85, 732/85,733/85 and 734/85 corresponding to Petty Cases Nos. 319/85 to 359/85 of PeddaThumbalam Police Station and in STC No. 728/84, 744/84,745/84,746/84,747/84,748/84,750/84,753/84,754/84,763/84 and 765/84 corresponding to Petty Cases of Madavaram Police Station were seized by the District Judge, Kurnool when the Court was visited on 2-7-87 and the said summons are sent herewith. The Enquiry Officer may confront H.C. (P.W3) about the entries in the summons to arrive at a correct conclusion as to when he received the summons from Court and when they were entered in the process register of the Police Station. Regarding the question as to when the police received the Court summons, I have to draw the attention of the Enquiry Officer to verify the ¦ process issue register of the respective Police Stations, wherein it would have been noted the date of receipt of summons in the Police Station vide PR No. 337/84 etc. corresponding to S.T.C. Nos. 729 /84 etc. mentioned in para 15 of the report. Further in the summons, P.R.No. of the Court is noted on the reverse and the P.R.N6. of the Police Station is noted on the top. In charge No. II, it is not specifically mentioned that the delinquent issued a receipt for Rs. 1230/-. So, Charge No. 2 should be properly framed so that we can know whether the delinquent admits about the issue of that receipt and if so when he issued it.
So, the Enquiry Officer is requested to re-enquire into the matter and may confront the witness i.e. P.W.S-1 to 3 with reference to the charge-sheets and summons issued in the said cases in order to come to a correct decision in the matter. Further Charge No. II should be properly amended and the delinquent should be asked to file his additional written statement”
7. Thus, I find that the disciplinary authority has been trying to fill up the gaps in evidence. He had virtually converted himself as de facto enquiry officer. The petitioner tried to allege bias to the 2nd respondent as he was making all out efforts to see that the charges are proved. Though I record my disapproval for the method and manner in which the 2nd respondent had proceeded with the matter, I am not inclined to set aside the entire exercise conducted by the Enquiry Officer which was in accordance with the rules. Further no prejudice was caused to the petitioner by directing re-enquiry as the petitioner was given further opportunity to defend his case. Therefore, I am not in a position to accept the contention of the petitioner that the 2nd respondent adopted such a procedure as to cause prejudice to his case.
8. The learned counsel now contends that the findings of the Enquiry Officer are perverse and they are not based on any acceptable evidence. He further submits that the 2nd respondent while accepting the findings of Enquiry Officer on 1st charge, gravely erred in disagreeing with the findings on 2nd charge.
9. It is noticed from the enquiry proceedings that the Enquiry Officer found fault with the procedure adopted by the Court of Munsif Magistrate, Yemmiganur and also the attitude of the police. Since the amount was admittedly received by the petitioner on 18-5-1985, he held that it is an unauthorised receipt of money. However, in respect of 2nd charge, the petitioner was exonerated.
10. As per the charge, the petitioner was alleged to have received Rs. 915/-on 18-5-95 towards fine amounts in 15 S.T.C. cases and the said amount was paid by him on three different dates on 31-5-86,6-8-86 and 26-9-86, thus the petitioner had temporarily misappropriated the fine amounts.
11. In the evidence it is brought out that P.W-3 Head Constable sent a sum of Rs. 950/- through the memo dated: 18-5-1995 and it was acknowledged by the petitioner. Though the witness could not say whether he had personally handed over the amount, the fact remains that the petitioner had categorically accepted that he received the amount on 18-5-1995, but he further stated that he returned the same on the very same day as the returned summons were not brought along with the Memo and that the fine amount cannot be validly accepted in the absence of served summons. The Enquiry Officer found that number of irregularities had occurred in the procedure regarding payment of fine amounts. He stated
“First of all I feel that a number of irregularities appear to have been committed and proper procedure was not adopted in the Court of the Munsif Magistrate, Yemmiganur regarding the collection of fines and disposal of S.T. Cases. The cases were closed without the production of the served summons. This is most irregular. According to Section 206 Cr.P.C. the special summonses in the case of Petty Offences may be issued to the accused requiring him to appear in person or by pleader before the Magistrate on a specified date, or if he desires to plead guilty to the charge without appearing before the Magistrate, to transmit before the specified date by post or by messenger to the Magistrate, the said plea in writing and the amount of fine specified in the summonses. Thus when the summons Under Section 206 Cr.P.C. is issued to an accused, the accused may state his plea of guilty and pay the fine amount. In these cases the summonses were taken by the police concerned. Therefore, when the accused in the above cases pleaded guilty, strictly speaking the police ought to have returned the summonses served containing the plea of the accused along with the fine amount. But in these cases pecularily without adopting the procedure of law, the Station House Officer, Madhavaram has taken action as if it is a transaction between two private individuals and paid the amount to the delinquent under a memo without returning the summonses served. P.W.3 ought to have submitted the served summonses and the fine amount collected from the accused before the Magistrate and taken his orders. As per the records the served summonses are not available in S.T.C.Nos. 728/84, 744/84, 745/84, 746/84, 747/84, 748/84, 740/84, 753/84, 754/84, 763/84, 765/84 and 766/1984. Only in three cases the served summonses are found. They are S.T.C.Nos. 729/84,752/84 and 764/84. In these summonses also P.C. 1829 who served the summonses on the accused and collected the fine amount did not note the date when the accused paid the amount or when the fine amount was collected from the accused. According to P.W.4 the summonses were found in the almyrah of the Magisterial Clerk No. I when they were searched at the instance of the Hon’ble District Judge. The delinquent was Magisterial Clerk No. II. The contention of the delinquent is that as the several summonses were not brought by the police, he returned back the amount to the Police, but by oversight failed to strike off the endorsement made by him in the memo. Thus, even if the police paid the fine amount to the delinquent, as the served summonses were not returned, it could not have been entered in the Fines Register and the cases could have been closed for want of the served summonses. Thus, there is police hand also in this irregularity”
12. The 2nd respondent has furnished the copies of summonses in STC Nos. 728/84 etc. which he had seized during his inspection. When he directed the Enquiry Officer to confront the said summonses by conducting re-enquiry, the same result had emerged i.e. the dates on which the summonses were served were not endorsed on the summonses.
13. Another circumstance, the Enquiry Officer had taken into consideration was that these cases were continued to be pending on the file after 18-5-85 when the cases were called on respective dates, the police did not raise any objection that the fine amount was already paid.
14. Thus the procedure that is contemplated is that the fine amount should be collected, and accounted only along with the returned summonses issued Under Section 206 Cr. P.C. duly served. It is the case of the petitioner that since the served summonses were not enclosed, the amount was returned to the police The learned counsel submits that even if the petitioner had received the amount it cannot be treated as fine amount until the served summonses are enclosed. From the way in which the affairs were conducted in Yemmlganur Court, it is quite probable that the police used to collect the fines in advance and after the summonses are served on the accused, the said amount was being deposited as fine amounts. The amounts which were collected can be treated as fine only when the cases are closed and amounts are collected and duly entered in the relevant register and till such time it cannot be called fine amount belonging to the Government. Mere giving the amount ipso-facto would not constitute the misconduct or misappropriation until and unless the amount is collected as fine and necessary entries are made and yet the amount was not deposited in the treasury. There is no evidence whatsoever that as oft 18-5-1985 the summonses were served and the cases were closed after collecting the fine amounts. On the other hand theevidence establishes that the fine amounts were collected on later dates and they were accounted. Under these circumstances it cannot be said that the petitioner had temporarily misappropriated the amounts in S.T.C. Cases. The Enquiry Officer also held as follows:
“When the procedure is that the fine amount must be paid along with the summonses issued Under Section 206 Cr.P.C. and submit the same to the Magistrate, the delinquent misconducted himself by receiving the amount from the Head Constable and passing an unauthorised receipt He ought to have refused to take cognizance of the Memo given by the Head Constable or he ought to have brought it to the notice of the Magistrate. However as already noticed, he misconducted himself by receiving the amount of Rs. 925-00 unauthorisedly from P.W.3 on 18-5-1985 and by making the acknowledgement”
Thus, I find that it is a case of unauthorised acknowledgement of the amount and to the same extent is the finding of Enquiry Officer. Though the charge of misappropriation is not made out, yet the petitioner is guilty of endorsing the premature fine amounts and thereby derelicted his duties by not intimating the Magistrate.
15. The 2nd charge is that the petitioner received Rs. 1,270/- from the Police Station, Peddathumbala on 29-11-85 being the fine amount in STC Nos. 731 to 743/85 and that he paid that amount on 29-4-1996 to P.W.4. This charge was refrained by the Enquiry Officer in pursuance of the order of 2nd respondent dated: 18-12-1987, which is as follows:
“That you Sri K. Abdul Gaffoor, former Junior Assistant, Munsif Magistrate’s Court, Yemmiganur at present Junior Assistant, Munsif Magistrate’s Court, Atmakur under suspension received Rs. 1270-00 from Sri Rahamathullah Khan, P.C. 1536 of Peddathumbalam Police Station on 29-11-1985 being the fine amount in Petty Case Nos. 319/1985. to 445/1985 corresponding to STC Nos. 731/85 to 743/1985 on the file of the Munsif Magistrate, Yemmiganur and you have issued a receipt for Rs.1230-00 to Sri Rahamatullah Khan, P.C. 1536 of Peddathumbalam Police Station, but you have retained the amount with you and give the amount to the clerk Sri M. BalaKrishna Reddy on 29-4-1986 and he entered it in the fine register on the same day and remitted the amount into the Sub-Treasury on 30-4-1986 and you thereby committed temporary misappropriation of the said amount”
The Enquiry Officer found that the cases were registered on 3-12-1985 and fine amounts were collected subsequently. The Enquiry Officer held that when the cases themselves were not registered on 29-11-1985, it is incomprehensible that the fine was collected even before the cases were registered. Thus, the Enquiry Officer entertained the doubt and exonerated the petitioner of the second charge.
16. The 2nd respondent disagreed with this charge and held that it is proved. I have gone through the reasonings given by Respondent No. 2. Respondent No. 2 proceeded with the issue with preconceived notion. The contention was mat the fine could not have been collected when the cases were not even registered. The further contention was that Ex. P-1 cannot be relied on because there was no date and the petitioner himself admitted that he received on 29-4-86 and not on 29-11-1985. There was no evidence that me amount was paid to the petitioner on 29-11-1985. Even the petty cases register maintained by the Police Station did not establish that the amounts were paid on 29-11-1985 to the petitioner. The respondent misconstrued the admission of receipt of Rs. 1,230/-. It was admitted by the petitioner that he received only on 29-4-1986 under the instructions from the Magistrate and not on 29-11-1985. The relevant extract is follows:
“The Enquiry Officer in para-27 of his report stated that the delinquent denied having passed Ex. P-1. This shows that the Enquiry Officer has not studied the evidence and records properly. When the delinquent has categorically admitted that he issued Ex. P-1 receipt on 29-4-1986, the Enquiry Officer states that the delinquent had denied about issuing this receipt. The Enquiry Officer commented that as per the evidence of P. W.4, the Cases were registered on 3-12-1985 and that when the cases were not even numbered by 29-11-1985 P.W.2 could not have paid the fine amount to the delinquent on 29-11-1985. I have perused the charge-sheets in S.T.C. Nos. 731/85 to 741/85. These charge-sheets were received in the Court on 29-11-1985 as seen from the date seal of the Court. They were taken on file on 3-12-1985 and they were posted to 6-12-1985. In all the charge-sheets we find corrections. It appears as if the cases were taken on file on 2-12-1985 and were posted to 3-12-1985. In all these charge-sheets thedate2-12-1985 is corrected and altered as3-12-1985. The date 3-12-1985 (which is the date of posting) is corrected and altered as 6-12-1985 in all the charge-sheets. Even the Magistrate originally put the date under his signature as 2-12-1985. Then he corrected the dates as 3-12-1985 in all the charge-sheets. In S.T.C. Nos. 732/85, 733/85,/734/85, 735/85, 736/85, 737/85,738/85,739,85,740/85 and741/85itis noted in colmn No. 3 of me charge-sheets that summons were issued on 2/12. The exact writing runs thus in all these charge-sheets: “Sir, issued. Sd. xxxxx 2/12.” Even in S.T.C. No. 731/85 it is first noted as if the summonses were issued on 2-12-1985 and subsequently the figure “2” is corrected as “3”. If really the cases were taken on file on 3-12-1985 summonses would not has been issued on 2-12-1985 itself. So, there is something fishy. The Magistrate as well as the delinquent appear to have been colluding in the acts of misappropriation of fine amounts. When such is the situation prevailing in the Munsif Magistrate Court, Yemmiganur it will not be surprising if the delinquent had asked the Police to bring the fine amount along with charge sheets. It is quite possible that the delinquent would have told the Police that the cases would be posted to 6-12-1985 and mat, therefore the Police have closed the cases in the petty case register noting that the fine amount was paid on 6-12-1985. We are not concerned as to when the police have collected the fine amount from the accused. If they have collected earlier and committed temporary misappropriation, they are responsible for the same. So, the Enquiry Officer has not properly understood the scope of the enquiry and he was carried away by the argument that because it is noted in the charge-sheet that the amount was paid on 6-12-1985 the benefit of doubt should be given to the delinquent. This is not a criminal case and the delinquent is not an accused in a criminal case to give benefit of doubt or to require the prosecution to prove the guilt beyond reasonable doubt. This is a departmental enquiry and the evidence adduced on both sides has to be weighed properly”
17. The 2nd respondent was under the impression that only in Criminal Cases, the benefit should go to the accused and not in departmental enquiries. In domestic enquiry the strict and sophisticated rules of evidence under the Evidence Act may not apply. All the material which are logically probative for a prudent mind are permissible. It is also well settled that in the departmental enquiries, the standard of proof required is that of preponderance of probability and not proof beyond reasonable doubt. The maxim that suspicion cannot take place of proof in a criminal trial also applies with full vigor to domestic enquiries. What is required in the disciplinary proceedings is that the charges framed against the public servant must be held to be proved before the punishment is imposed. The burden of proving a fact vests on the party and substantially asserts the affirmative of the issue and not upon the party who denies it for a negative as usual incapable of proof. This principle of burden of proof founded on the Rule of Roman Law namely ei incumbit probatio, ami decit, non qui negad. Therefore where it is found on the basis of the entire evidence on record that the authority cannot make up its mind to which of the versions is true, it is to be held that the party on whom the burden lies has not discharged the burden. Though the Evidence Act does not apply to the departmental proceedings, yet the general principles of law enunciated on the burden of proof and onus is a basic principle of law which the authorities are required to follow. When on the basis of the evidence, a bonafide doubt is created as to the proof of charge, there is no reason why the benefit of doubt should not be given to the employee who is subjected to disciplinary process. As in Criminal trial, the benefit of doubt should go to the accused, so is the case in departmental enquiry. When the accusation is made on the employee and the evidence adduced in support of the accusation created a doubt, the benefit of such reasonable doubt on law and facts must go to the delinquent employee. This is a general principle of law which is applied while establishing guilt or otherwise of a delinquent employee.
18. Thus, I find that the conclusions of 2nd respondent are not sustainable and they are based on mere surmises and conjectures. Accordingly, it has to be held that the charge is not established against the petitioner.
19. Therefore the only issue that falls for consideration is whether the charge No. 1 to the extent it is established would warrant dismissal from service. As already held by me the petitioner is guilty of committing dereliction of his duties inasmuch as he received the amount, though it is not a fine amount, and failed to intimate to the Magistrate. The amount could not have been accounted on 18-5-1985 as the served summonses were not available, and the fines were collected as per the records on different dates subsequent to 18-5-1985. Therefore the gravamen of the charge that the petitioner had temporarily misappropriated the amounts is emasculated and only the misconduct of negligent performance of duties is sustained. Under these circumstances. I am of the view that imposing the punishment of dismissal from service and that too on an employee who has rendered 19 years of service without any remarks, appears to be highly unconscionable. The appellate authority also failed to consider these aspects in proper perspective.
20. In view of the foregoing discussions, I am inclined to set aside the order of punishment and remit the matter to the 2nd respondent for passing appropriate order of punishment.
21. It is now well settled that this Court has no jurisdiction to substitute the punishment under Article 226 of the Constitution of India even if it finds that the punishment is grossly disproportionate to the gravity of the misconduct and the matter should go either to the disciplinary authority or the appellate authority for passing suitable orders of punishment. (See: State Bank of India v.. Samarendra Kishore Endow, 1991 (1) SCALE 206, State Bank of Hyderabad v. V.K. Gadgil, & District & Sessions Judge, Guntur v. T. Madhavarao .
22. Accordingly, the Writ Petition is allowed and order of punishment dated: 3-6-1988 passed by the 2nd respondent as confirmed by the 1st respondent dated: 7-2-1992 are quashed. The 2nd respondent shall now consider the matter relating to the punishment keeping in view the nature of charges proved and pass the order of punishment within a period of six(6) weeks from the date of receipt of the copy of this order. No costs.