Major Singh v. The Punjab State Seeds Corporation Ltd. SCO No.835-836, Sector

CORAM:HON'BLE MR. JUSTICE K. KANNAN

1. Whether Reporters of local papers may be allowed to see the judgment ? No

2. To be referred to the Reporters or not ? No 3. Whether the judgment should be reported in the Digest? No K. KANNAN J.(ORAL) -.-

1. The petitioner challenges the decision of the respondent- Corporation to dismiss him from service on the alleged proof of charges. There were two sets of charge-sheets issued against the petitioner when under the first charge-sheet, the imputation was that the petitioner had taken 30 ltrs of the petrol for Staff Car No.CHK-2401 against a credit slip dated 27.08.1988 and a bill of Rs.1528.22 had been received from the petrol pump. This bill was reported to have been deliberately changed from Rs.1528.22 to Rs.1274.12 after deducting the price of 30 ltrs of petrol. It was alleged that this credit could not have been used against Car CHK- 2403 by the fact that the car had gone away on tour at Delhi on C.W.P. No.3366 of 1990 -2- that particular day and therefore, there was a case of embezzlement of 30 ltrs of petrol. There were two other charges in the first charge-sheet namely that the petitioner had shown a low average of petrol consumption for his vehicle and a non- maintenance of the log book in the manner required to be done. The 2nd charge-sheet was in some way a replication of the 2nd charge relating to reporting of low average of petrol consumption and non-maintenance of log book. All the charges had been denied by the petitioner and after a fullfledged enquiry, the Enquiry Officer had found that charge No.1 had been established and as regards the other charges, the petitioner had been exonerated. The Disciplinary Authority, however, while handing down the punishment of dismissal had assumed that charge No.1 as well as charge No.2 had been established and that charge No.1 of the 2nd charge-sheet had also been established. The mistake was pointed out even in the appeal filed by the petitioner to the Appellate Authority, who without even looking into the report of the Enquiry Officer had affirmed the order of the Disciplinary Authority.

2. Learned counsel for the petitioner would contend that the action of the Disciplinary Authority in inflicting a punishment of removal on an assumption that charge No.2 of the 1st charge-sheet and charge No.1 of the 2nd charge-sheet had been established when they had not been and it showed a pre-determined approach to dismiss him from service. He would point out the mistake of the Appellate Authority as also an additional fact that the management was only interested in removing him from service. It was his C.W.P. No.3366 of 1990 -3- further contention that 30 ltrs petrol of Rs.254/- had also been paid by the petitioner and since there was no monetary loss, the Authority must have considered for a lesser punishment.

3. I have no difficulty in accepting the contention of the petitioner that the Disciplinary Authority had committed a mistake in assuming that charge No.2 of the 1st charge-sheet and charge No.1 of the 2nd charge-sheet had been proved by the Authority when only first charge had been established. The Appellate Authority had also committed the same mistake. If the case had come up immediately after the orders were put in challenge, perhaps it would have been possible to direct the Disciplinary Authority to consider the mistake and take a fresh decision. After 19 years, I have not think such an exercise must be undertaken and I hasten to consider myself whether the charge No.1 itself was grave and whether the decision to dismiss him from service would still have been supported if charge No.1 alone had been established. It is always within the realm of judicial review to consider the proportionality of punishment to the charge and if charge No.1 had been established and if a punishment of dismissal were to be supported, it shall be perfectly possible for the Court to examine whether the proof of only charge No.1 could go to support the punishment. The charge No.1 as I have illustrated above with reference to preparation of a credit bill for alleged filling up of petrol to a particular vehicle, which on that day had not been at the office but which was on a tour away at Delhi. The petitioner was preparing a bill of alleged consumption of petrol for a car on C.W.P. No.3366 of 1990 -4- which he had no control on that day. He was admitting to not merely creating a false bill but he was trying to bring out the existence of a car at a place when it was not there. The embezzlement was clearly established and it is irrelevant that the petitioner made good the loss later. In matters of embezzlement, the amount is seldom the issue. It is the act of embezzlement that is the offence. It has been held in Karnataka SRTC Vs. Hullikatti (2001) 2 SCC 574; TNCS Corporation Ltd. Vs. K. Meerabai (2006) 2 SCC 255 by the Hon'ble Supreme Court that an embezzlement issue could not be any the less grave if the amount involved was not a huge amount. The Court underscored the principle that the punishment is always for the misconduct of embezzlement and that will have no bearing to the amount, which is embezzled.

4. Learned counsel for the petitioner states that the Enquiry Officer's report was not supplied to the petitioner and therefore, the action of removal was not justified. Learned counsel refers to decisions of the Hon'ble Supreme Court in Union of India and others Vs. Mohd. Ramzan Khan 1991(1) SCT 111 and Managing Director, ECIL, Hyderabad etc. Vs. B. Karunakar etc. AIR 1994 SC 1074. The subsequent judgment of the Hon'ble Supreme Court is a Constitution Bench that refers to Ramzan Khan's case. The Constitution Bench has explained that even the non-supply of the Enquiry Officer's report does not always result in rendering the order of punishment bad unless prejudice is shown. The decision in B. Karunakar's case was recently explained by the Hon'ble C.W.P. No.3366 of 1990 -5- Supreme Court in Haryana Financial Corporation Vs.Kailash Chndra Ahuja (2008) 9 SCC 31 where they have shown that the issue of prejudice is predominant and the non-supply of Enquiry Officer's report will not always be material. Learned counsel for the petitioner points out that the order of dismissal was issued on

20.07.1989 while the Enquiry Officer's report was given only on

09.10.1989. The prejudice in this case could have been shown if it was pointed out that the finding relating to the charge of embezzlement was in some way faulted; that Enquiry Officer had not considered a particular evidence, which he had placed or the vehicle to which the petrol was alleged to have been filled was very much available on that day and therefore, the finding that the vehicle had gone away on tour was not correct. The finding regarding the guilt on charge No.1, if it is not possible to assail for the petitioner, in any way, the non-supply of charge-sheet could not be said to have caused any prejudice to him.

5. The dismissal of the petitioner from service is, therefore, maintained and the writ petition, under the circumstances, is dismissed. March 18, 2010 Pankaj* (K. KANNAN) JUDGE