Meera Jha v. The State Of Bihar

defalcated temporarily, for which an FIR was registered at Kadamkuan P.S. 2) The delinquent being Accounts Clerk and Treasurer, caused hindrance in the treasury work of Ganga Project, Division-I, Patna by not joining and taking over charge till 18.04.2002 at Bihar State Water Board, Ganga Project Division, Bhagalpur. 3) Non-handing over of charge on time, by delinquent, concerning the Accounts and Cash Patna High Court CWJC No.11188 of 2005 (10) dt.11-09-2013 4 Register of Ganga Project, Division-I, Patna, also caused hindrance in the Accounts work of the Division. 4) Non-joining of the delinquent at Ganga Project Division, Bhagalpur, till date from the date of transfer and the act of remaining absent from duty by a government servant for such a long period is a serious matter. 5) Mis-appropriation of fund by not depositing the Income Tax and Sales Tax in time – According to the Cash Book under the heading Gap-II, the deduction of Income Tax of Rs.9,361.00 + Rs.11,144.00 = Rs.20,505.00 were shown to be deposited on 27.03.1999, but actually it was deposited on 30.06.1999. Thus, the delinquent temporarily defalcated the amount during the said period. 6) The charges under this head contained allegations of misappropriation of funds by the delinquent on different occasions by making false entries or by tampering in the Cash book and the Cash register. 7) Embezzlement of the amount under Contingency head – The delinquent made an entry of Rs.10,000.00 on 19.08.1996 towards expenses under the contingency head made by the Executive Patna High Court CWJC No.11188 of 2005 (10) dt.11-09-2013 5 Engineer, after closing of the cash book, the voucher of which is not available. On 18.07.1998 also, an amount of Rs.10,000.00 was entered as expenses towards contingency, after closing of the cash book, voucher of which is also not available, while on 29.07.1998 also an amount of Rs.10,249.00 was entered in the cash book towards contingency after closing of the cash book. The voucher of which is also not available. After calculation a difference of Rs.10,000.00 was found. 8) Non-compliance of the order passed by the Hon’ble High Court – It was directed by Hon‟ble High Court in L.P.A. No. 363 of 2003 vide order dated 01.05.2003 that the delinquent should join Bihar State Water Board within a month and that if he does not join within the stipulated time then his services shall be terminated but the delinquent did not comply the same till date. The delinquent was directed by the Superintending Engineer, Head Quarters, vide Memo No. 237 dated 22nd July 2004, to file a reply to the Memo of Charges within a week. Subsequently, the delinquent, requested the Superintending Engineer- cum-Conducting Officer vide letter dated 16th October 2004, to supply him the documents which were to be relied upon in the enquiry, for enabling him to file an effective reply. The said letter has been brought on record as Annexure-19. Patna High Court CWJC No.11188 of 2005 (10) dt.11-09-2013 6 The Inquiry Officer found all the Charges proved, except Charge No. 2 and 8, while Charge no. 6 was found proved under all heads except one, whereas Charge no. 3 was found not proved, since no document in support of the said charge was available in the Division. Subsequently, Second Show Cause notice was issued on 24th February 2005, as contained in Anenxure-20 of the writ application, but along with the Second Show Cause notice, neither the report of the Inquiring Officer was supplied nor any reason was assigned for differing with the charges which were not proved. Consequently, the delinquent submitted the reply dated 26th February 2005, contained in Anenxure-21, requesting the Secretary, Bihar State Water Board, Patna, to supply the documents which were earlier asked for, but ultimately, without supplying the said documents, the Disciplinary Authority dismissed the delinquent from service, vide Memo No. 816 dated 10th March 2005, as contained in Anenxure-22, on the charges being found proved and subsequently, the Secretary Bihar State Water Board, vide Memo No. 1034 dated 29th March 2005, as contained in Annexure-23, directed for recovery of Rs.1,49,293/-, alleged to be the misappropriated amount, along with Rs.18,006.00, the cost incurred by the Board towards litigation. The Secretary of the Board, vide Memo No. 1230 dated 9th April 2005, as contained in Annexure-24, directed for recovery of Rs.47,099.00 alleged to have been mis- appropriated by the delinquent, by making the same entry twice in the Books of Accounts. It is contended by the Senior Counsel for the delinquent (Original Petitioner) that the non-supply of the documents and the inquiry report has seriously prejudiced the case of the delinquent, who could not know as to which charges were found proved/not proved by the enquiry officer. Patna High Court CWJC No.11188 of 2005 (10) dt.11-09-2013 7 The Inquiry report has been brought on record for the first time as Annexure-B to the supplementary counter affidavit, which reflects that neither the Second Show Cause, as contained in Anenxure-20, nor the impugned order, assigns any reason for differing with part of the charges which were not proved. Moreover, the Second Show Cause or impugned order does not reflect that any consideration was made on the aspect that certain charges were found not proved by the Inquiring Officer. Learned Senior Counsel has further submitted that since the internal audit was conducted by R.K. Mishra & Co., and nothing was found against the delinquent, but it was only in the Special Audit that the charges of mis- appropriation were levelled, hence Special Audit Report ought to have necessarily been supplied to the delinquent for giving an effective reply in this regard. The passage of time between the dates on which the Internal and the Special Audit were done, creates bonafide impression about tampering having been done subsequent to the Internal Audit, in the cash book and vouchers. Hence, it was essential for the respondents to have allowed the delinquent to go through the cash book entries having cuttings, particularly in the light of the fact that the Drawing & Disbursing authority verified the entries in the cash book. The learned Senior Counsel for the delinquent, in support of his stand has relied upon judgments rendered by the Apex Court in Union of India Versus Md.