Calcutta High Court (Appellete Side)
Krishnapada Tarafder vs The State Of West Bengal & Ors on 25 November, 2010
Author: Biswanath Somadder
Bench: Biswanath Somadder
1
25.11.10
(PB)
W.P. No. 22373 (W) of 2006
Krishnapada Tarafder
vs.
The State of West Bengal & Ors.
Mr. Joyotosh Majumder,
Mr. Z. Islam.
.....For the Petitioner.
Mr. Tulsidas Maity
.....For the Board.
Mr. N.C. Dey.
....For the Respondent No.5
This writ petition has been taken out in the year 2006, by a retired headmaster, who at the time of attaining superannuation was under suspension. The school where the writ petitioner was the headmaster was being run by an administrator, who was appointed sometime in 1999. During a surprise inspection, the administrator found that although on a number of days fees were collected from students amounting to Rs.12,000/-, on all those days such fees were received by the writ petitioner from the clerk of the school through a hand- written book, out of which only Rs.6,000/- was shown in the receipt book of the school. The administrator, subsequently, constituted a fact finding enquiry committee which came to a decision and submitted a report to the administrator. In the report, charges of defalcation and misappropriation of funds as well as misuse of power, as evident from the record, were established. Based on an order passed by this Court, the writ petitioner preferred a statutory appeal before an appeal committee which culminated in a decision rendered by the said appeal committee on 19th April, 2006, which was subsequently 2 communicated to the writ petitioner by the West Bengal Board of Secondary Education, vide memo dated 4th May, 2006. This decision rendered by the appeal committee is under challenge in the present writ petition.
The specific contention of the learned advocate for the writ petitioner is that the appeal committee rendered its decision against the writ petitioner on the basis of no evidence. Learned advocate for the writ petitioner submits that the audit report which has been sought to be relied on is based on no material evidence and the appeal committee itself was in a doubt as to whether the writ petitioner was hundred percent responsible for the total defalcation of school funds.
Learned advocate for the petitioner also submits that curiously enough, the clerk of the school, who was said to be involved along with the headmaster, was not proceeded against and stood exonerated. Learned advocate for the petitioner relies on the judgment of the Supreme Court rendered in the case of Roop Singh Negi Vs. Punjab National Bank & Ors. reported in 2009(2) SCC 570 and submits that the charges levelled against a delinquent officer must be found to have been proved and it is the duty of the enquiry officer to arrive at a finding upon taking into consideration the materials on record. He submits that in the facts and circumstances of the instant case, no such charges have been proved and no material or evidence was ever adduced in support of the charges levelled against the headmaster.
He has also relies on another judgment of the Supreme Court reported in the case of Kuldeep Singh Vs. Commissioner of Police & Ors. reported in (1999) 2 SCC 10 3 and submits that this Court, under Article 226 of the Constitution of India, can interfere with a finding of guilt in a departmental enquiry, if the same is based on no evidence or is such as could not be reached by an ordinary prudent man or is perverse or is made at the dictates of a superior authority.
On the other hand, learned advocate appearing on behalf of the West Bengal Board of Secondary Education relies upon observations made by the appeal committee in its decision rendered on 19th April, 2006, and submits that such decision was arrived at upon weighing of evidence and materials, which would be borne out from record and it is not a case where there was no evidence against the delinquent.
After considering the submissions made on behalf of the parties and upon perusing the instant application, it appears that the writ petitioner had initially faced an enquiry and thereafter a successive fact finding enquiry committee, in its finding dated 28th October, 2002, held the charges of defalcation and misappropriation as well as misuse of power, as evident from the record, as established against the writ petitioner. Meanwhile, the writ petitioner approached this Court. Based on an order passed by this Court, the writ petitioner preferred a statutory appeal before the appeal committee. The appeal committee took into consideration the audit reports for three financial years and observed, inter alia, as follows:-
"The Clerk/Cashier actually issued bills/receipts to the students and the Headmaster's responsibility is to ensure that those money so collected are duly deposited in the fund of the school. One can argue that in such a 4 situation the Clerk/Cashier does not have defalcated the amount and the Headmaster had deficiency in proper supervision without actually taking the excess amount to collected. But in the instant case we have on record the written exercise book showing actual collection of few days in 1999 which were received by the Headmaster under his full signature and dates but even then almost half of the amount has been recorded in Cash Book as received. This speak of volume of the active part taken by the appellant- Headmaster in siphoning the school fund for his personal gain. It may be that the appellant-Headmaster has not been alone in getting the entire amount of defalcated money and the Clerk concerned had also his share in it. But here we find that there are documents to show that the appellant-Headmaster himself got the days collection back from the Clerk/Cashier concerned by signing a separate exercise book which was not at all necessary for maintaining the account of the school. It again speaks volume of the involvement of the appellant-Headmaster in misappropriation of the school fund.
Under such circumstances though it may not be 100% correct but the appellant/headmaster himself had made defalcation of total sum of Rs.1,84,588.35 as reflected by the C.A. Firm appointed by the D.S.E. we have no option too but hold that the amount of Rs.1,82,200/- withheld by the solemn order of the Hon'ble High Court, should not be refunded to the appellant and should be credited to the fund of the school.5
The M.C. has produced a letter dated 24.4.02 signed by the appellant addressed to the Administrator of the school in which the appellant confessed his guilt and financial irregularity and prayed for excusing him after giving light punishment. Such a confession by highly educated headmaster made voluntarily also corroborates his guilt in the charges of defalcation of fund which is very serious in nature.
The contention of the learned Counsel of the appellant is that even after withholding a sum of Rs.1,82,000/- the balance amount has not yet been paid by the school, despite direction by Hon'ble Calcutta High Court, without prejudice to the right and contention of the appellant to initiate contempt proceedings against M.C. for such alleged violation of the order of the Hon'ble High Court we think it is our duty to direct the M.C. to release the balance amount of after retirement benefits, keeping sum of Rs.1,02,000/- as aforesaid and pay the appellant within a period of one month from the date of receipt of this order.
The appeal is accordingly disposed of."
A bare reading of the above finding of the appeal committee goes to show that certain material evidences were considered, such as the written exercise book showing actual collection of few days in 1999 which was received by the headmaster under his signature and dates. The appeal committee has gone on to observe to the effect that although such collection was received by the headmaster under his full 6 signature and dates, only half of the amount has been recorded in the cash book as received.
Thus to come to a conclusion on that there was no evidence based on which the appeal committee came to its decision, sounds a bit far-fetched. The judgments of the Supreme Court relied on by the learned advocate for the writ petitioner would have come to his assistance had it been a case of no evidence; but this is not such a case.
However, in the impugned decision of the appeal committee, it has also been observed, inter alia, to the effect that it may not be hundred percent correct that the headmaster himself had made defalcation of the total sum of Rs.1,84,588.35 p., as reflected by the C.A. Firm appointed by the Director of School Education. In other words, it means the appeal committee was not cent percent sure that the headmaster acted solo while the defalcation took place. However, in a disciplinary proceeding, the burden of proof is significantly different from the requirement of such proof in a criminal proceeding. A decision arrived at in a disciplinary proceeding, on the basis of evidence weighed on the scale of preponderance of probability, cannot be simply brushed aside. In the instant case, it is seen that the impugned decision rendered by the appeal committee was arrived at on the basis of preponderance of probability.
In Kuldeep Singh's case (supra), the Supreme Court has observed, inter alia, to the effect that the High Court under Article 226 would not interfere with the findings recorded at the departmental enquiry by the disciplinary authority or the enquiry officer as a matter of course and the Court cannot sit 7 in appeal over those findings and assume the role of the appellate authority. However, the power of judicial review is available when a conclusion is reached by such disciplinary authority was based on no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse or made at the dictates of the superior authority. None of the above exceptions are applicable in the instant case for reasons discussed hereinabove.
In Roop Singh Negi's case (supra), the settled principles of law governing departmental proceedings, which are essentially quasi judicial proceedings, have been re-stated. It has been observed, inter alia, to the effect that where a report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer, in the facts of that case, apparently were not supported by any evidence. Thus, on facts, the present case is quite distinguishable from Roop Singh Negi's case.
For the above reasons, this Court is of the view that the impugned order of the appeal committee does not warrant any inference of this Court, in exercise of its jurisdiction under Article 226 of the Constitution of India. However, at the time of final hearing of the matter, it transpired that the amount of Rs.1,82,000/- which has been kept deducted from the petitioner's pensionary benefits, includes his provident fund dues as well. If that be so, the writ petitioner is statutorily entitled to have his provident fund released. This Court, therefore, directs the concerned respondents to take immediate 8 steps to ensure that the provident fund dues of the writ petitioner are released in his favour without any further delay.
The writ petition is accordingly disposed of. Urgent photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible.
(Biswanath Somadder, J.)