High Court · 2012

The appellant was working as Lower Division Assistant under the respondent Corpo ration. Departmental proceedings were initiated against him vide charge sheet da ted 28.07.1998 under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 read with Assam State Transport Corporation Employees Service Regularisati on, 1971. One of the charges was misappropriation of money amounting to Rs.17,83 2/-. The charge was denied which led to departmental enquiry. After considering the materials on record the Enquiry Officer held the charges to be proved. After considering the stand of the appellant against the findings recorded by the Enq uiry Officer, order dated 19.04.2004 was passed imposing the penanty of removal from service. The said order was affirmed on appeal. Aggrieved thereby the appel lant approached this Court under Article 226 of the Constitution. Contention raised on behalf of the appellant was that he was not given reasonabl e opportunity of being heard in that list of documents and witnesses were not fu rnished to him. Learned Single Judge did not find any merit in the submission. It was held : (cid:28)From the materials on record what has transpired is that the request of the pet itioner for furnishing the documents was acceded to and he was allowed the inspe ction of the documents. The petitioner also well understood the charges leveled against him and never expressed any difficulty and/or reservation in furnishing his reply to the charges leveled. Even in the writ petition it is not the case o f the petitioner that because of non-furnishing of the documents, he suffered an y prejudice. As regards the plea of the Defence Assistant not being provided to him, there is nothing to show that the petitioner made any demand for the same. Although a plea has been raised that the petitioner was not allowed to cross exa mine the said witness. Thus, the statement of the witness towards establishing t he charges went unrefuted (cid:29) & & & & &. (cid:28)The enquiry officer in appreciation of the evidence on record held the petition er guilty of all the charges. He found that the plea of the petitioner that he w as only a reliever and that he was not responsible for the deficiency in the tra nsaction, was not convincing. As noted above, the only defence of the petitioner was that he being not in full charge of the particular counter, used to deposit the sale proceeds either to the cashier or to the reliever one Shri D. Majumdar , who was also charged with misappropriation of Corporation’s money. It is on re cord that the petitioner as per his own admission used to collect tickets books from the aforesaid officer. If that be so, it was incumbent on his part to retur n the same with used or unused tickets. But instead, he, as per the statement, m ade used to keep the same in a box, which was also stolen. Thus, there was nothi ng to show that the ticket books contained unused tickets. The petitioner being involved with accounts, it was incumbent on his part to submit the day to day sa le proceeds with proper accounting. The kind of plea which had been taken natura lly did not convince the authority. Needless to say that the writ Court exercising its power of judicial review unde r Article 226 of the Constitution of India will not sit on appeal over the evide nce and/or appreciate the evidence so as to give to a different finding. There i s nothing to show that the finding recorded by the enquiry officer, disciplinary authority and the appellate authority are totally perverse and/or based on no e vidence at all. It is the preponderance of probability which is the measuring ro d. The said test having been established, the writ Court will not reappreciate t he evidence so as to return a different finding than that of the said three auth orities. The petitioner although was imposed with penalty of removal from service, but la ter on taking a lenient view of the matter, he was imposed the penalty of compul sory retirement so that his pensionary and other retirement benefits are not obl iterated altogether. In the matter of accounting, it is the trust and confidence which matter much. The petitioner was entrusted with the Corporation’s money an d it was expected of him that he would maintain proper accounting, but instead h e was involved in misappropriation of Corporation’s money. The kind of defence w hich has been advanced, is not at all acceptable. It was incumbent on his part t o maintain the day to day accounting by depositing the sale proceeds along with the used ticket books. In the departmental proceeding the charges having been es tablished, the disciplinary authority imposed the penalty as was deemed fit and proper. (cid:29) We have heard learned counsel for the parties. Learned counsel for the appellant has not been able to show any error in the fin ding recorded by the learned Single Judge. The conclusion in the enquiry is base d on evidence and there iss no violation of principle of natural justice in cond ucting the enquiry. It could also not be shown that the penalty imposed, in the circumstances, was disproportionate to the charges. There being no perversity in the finding recorded by the enquiry officer, the sa me is not liable to be interfered with and having regard to the nature of the mi sconduct alleged and proved, no interference is called for with the penalty. We , thus, do not find any ground to interfere with the view taken by the learned S ingle Judge. The appeal is dismissed.