Andhra HC (Pre-Telangana)
The Registrar, High Court Of A.P. And ... vs B. Sanjeevaiah on 23 June, 1995
Equivalent citations: 1995(2)ALT789
JUDGMENT B.K. Somasekhara, J.
1. The appellant No. 2 is the District Judge, Anantapur. Appellant No. 1 is the Registrar of the High Court of Andhra Pradesh, Hyderabad. Appellant No. 2 passed the impugned order of dismissal from service against the respondent in D.No.2/91, dated 22-1-1992 which came to be confirmed by appellant No. 1 in the appeal filed by respondent in Roc. No. 1797/92/C.Spl. (Con), dated 21-10-1992. The orders of the appellants were challenged by the respondent in W.P. No. 16668/1992. That writ petition was allowed by the learned Single Judge by his orders dated 25-10-1994 remitting back the matter to the appellant No. 2 for reconsideration of the question of penalty from that of the dismissal to any other reasonable penalty and that order of the learned single Judge is assailed in this writ appeal.
2. At the relevant time, the respondent was working as the Head Clerk in the District Munsif's Court, Kadiri in Anantapur district. Surprise checks were made by the District Munsif on 15-12-1990 and 18-12-1990 which revealed that the respondent had not accounted for certain amounts of cash, nor deposited them into Treasury in accordance with Rules. After a show-cause notice to him and after obtaining the explanation, the District Munsif reported the matter to the District Judge. The allegations against the respondent were also verified through a Special Auditor by the District Judge. Having found a prima facie Case of against the respondent on the allegations of misconduct of misappropiration and dereliction of duty, disciplinary proceedings were initiated against the respondent in D.E. No. 2 /91 by appellant No. 2 and Article of charges was issued to him. He denied the charges and proposed to have an oral and personal enquiry into the allegations of misconduct of the charges. The Additional District Judge, Hindupur was appointed as an Enquiry Officer by appellant No. 2. After holding an enquiry into the charges against the respondent by the Enquiry Officer by affording all reasonable opportunities to him including the assistance of an Advocate to defend him, the Enquiry Officer submitted his report dated 11-10-1991 to the appellant No. 2 holding that some of the charges were proved against the respondent.
3. A show-cause notice dated 24-10-1991 was issued to the respondent by the appellant No. 2 as to why the report of the Enquiry Officer should not be accepted and as to why he should not be dismissed from service. The respondent submitted his reply to the show-cause notice. The appellant No. 2 accepted the report of the Enquiry Officer and passed the impugned order of dismissal of the respondent from service dated 22-1-1992.
4. In the writ petition the learned single Judge held that the imputation of misconduct of misappropriation of certain amounts of the Court was not established as against the respondent and no such misconduct of gross negligence and dereliction of duty by way of misconduct were established and consequently by allowing the writ petition, the impugned order of dismissal was set aside with a direction to the appellant No. 2 to reinstate the respondent with a further direction to pass appropriate orders of penalty against him on or before 30-11-1994.
5. The learned Advocate Mr. L. Narasimha Reddy for the appellants has raised these contentions in this appeal:
(1) There was sufficient evidence in proof of the charges of misconduct of misappropriation of certain amounts by the respondent apart from misconduct of negligence and dereliction of duty.
(2) The view of the learned single Judge that only such misconduct stated 4 above is proved, is opposed to evidence collected during enquiry.
(3) There were good and sufficient reasons to pass the impugned order of dismissal of the respondent from service and even in the appeal filed by the respondent against such an order before appellant No. 1, the order was confirmed on merits based on evidence and therefore, there was no reason for this Court to interfere with such an impugned order of dismissal.
(4) The Court under Article 226 of the Constitution of India was not justified in probing into the merits of the case or to interfere with the findings of fact arrived at by the Enquiry Officer and appellant No. 2 the disciplinary authority.
(5) It was not a matter wherein this Court could have interfered with the discretion of the disciplinary authority regarding the nature of the penalty of dismissal imposed on the respondent and at any rate, in a proved case of misappropriation justifying an order of dismissal which can never be harsh.
(6) The order of the learned single Judge deserves to be set aside thereby confirming the order of the appellants.
6. Mr. K. Venkataramaiah, the learned Counsel for the respondent while supporting the finding of the learned single Judge that the allegations and proof of misconduct against the respondent were only in regard to the irregularity in maintaining the accounts amounting to dereliction of duty and negligence, has challenged the finding of the learned single Judge that the charges of gross negligence and dereliction of duty are established since the respondent had given satisfactory explanation for such laches. However, no cross-appeal or cross-objections are filed by the respondent.
7. The only point for consideration in this appeal is whether the learned single Judge was justified in interfering with the impugned order of dismissal of the respondent from service passed by the appellant No. 2 and confirmed by the appellant No. 1 to any extent?
8. We are inclined to repeat the charges against the respondent in the Article of charges and to read them:
"I, P. Swaroop Reddy, Addl. District Judge, Hindupur-cum-Enquiry Officer hereby charge you: Sri B. Sanjeevaiah, Head Clerk-cum-Dy. Nazir, Principal District Munsif Court, Kadiri as follows:
Firstly:- That you while working as Head Clerk-cum-Dy. Nazir, Principal ,_ District Munsif Court,. Kadiri for the period from 1-1-89 to 31-1-91 and in abuse of your official position actuated by corruput motives and in order to misappropriate, did not care to maintain the records and bring account certain suitors amount, maintenance amounts, judicial receipts etc., with dishonest intention and misappropriated and thereby rendered yourself guilty of grave misconduct. "
Secondly:- That you at the same time and in the course of the same transaction referred to in charge No. 1 did receive a cheque for Rs. 1,000/from the Sub-Court, Kadiri on 14-6-90 but by your indifference and negligence failed to bring it to the register of cheques and failed to adjust the said amount to C.C.D. of your Court, that later adjusted on 28-1-191 at 40 the intervention of the Presiding Officer, that thereby rendered yourself liable for gross negligence and dereliction in discharge of your duties.
Thirdly:- That you at the same time and place and in the course of the transaction referred to in the charge No. 1 being actuated by corrupt intention, did misappropriate the sum of Rs. 3,300/- deposited towards committal batta on 24-4-90,9-4-90 and 14-5-90 and Rs. 1,100/- on each of the E.Ps. - E.P.1/90 in O.S. 230/77 (2) E.P.130/86 in O.S. 272/84 and (3) E.P.37/88 in O.S. 107/87 respectively and also did not bring these amounts to the Nazarath register thereby committed breach of trust imposed on you and rendered liable under CCA. Rules.
Fourthly:- That you at the same time and place and in the course of the same transaction with intent to commit misappropriation, committed breach of trust reposed in you, did violate the mandatory provision of rules framed by the High Court in its Circular rules under accounts under Civil Rules of Practice and under A.P.F. Code viz., that you did not bring the amounts deposited to account on the same day, that having brought to account at your convenience did not remit into the bank either on the same day or on the next day, that the unspent batta was not refunded to the advocates after they became payable within one month, that there are delays in depositing or paying to advocates ranging from 29 days to one year 9 months and 24 days and thus committed acts unbecoming of Government servants.
Fifthly:- That you at the same time and place and in the course of the same transaction referred to in charge No. 3 intentionally suppressed the fact of misappropriation of amounts covered under the said cheque petitions in not certifying the deposited amounts in the cheque petitions filed by advocates - (1) Sri T. Venkataramireddy (2) Sri T. Venkateswara Reddi and (3) Sri K. Abdul Rasool on 21-8-90,10-9-91 and 13-8-90 respectively and never cared to bring to the notice of the Presiding Officer and concealed the fact of misappropriation of amounts and thereby committed grave misconduct and liable under C.C.A. Rules."
Thus the five charges and imputation in the Article of Charges against the respondent clearly impugnes him with misconduct of misappropriation, gross negligence and dereliction of duties. The respondent throughout admitted the entrustment of certain amounts to him as detailed above, non-accounting of the same for certain periods detailed therein and only came out with certain explanations as to why he acted in such a manner. The unchallenged evidence collected during enquiry reveals that the respondent did not account for such items for such alleged periods. Both in the enquiry report and in the impugned order of dismissal passed by the appellants, the explanation of the respondent was accepted in regard to certain items in the charges and rejected in regard to certain items as can be made out in paras 24 to 37 of the enquiry report which are accepted by appellant No. 2 in the impugned order. As a whole, the items of misconduct in the charges which are proved are mentioned in para 38 of the Enquiry Report which is confirmed by appellant No. 2 and subsequently by appellant No. 1, as follows:
".....In all these circumstances, I hold that charge No. 1 to the extent of misappropriation of items 2 and 3 of District Munsif, Kadiri i.e., A.No.911 /90 (delay of 9 months in depositing the amount of Rs. 1,100/-) and E.P. 1 /90 in O.S. 230/87 (delay of 8 months 16 days in depositing the amount of Rs. 1,100/-); and Item No. 1 of Sub-Court i.e., A.No.705/89 (delay of 6 months 9 days in returning the amount of Rs. 1,100/- to the Advocate); and with regard to item No. 1 of stamp duty and penalty amount pertaining to ).S. 91/89 (delay of 10 months 14 days in remitting the amount of Rs. 660/-); and with regard to item No. 1 of Addl. Judicial Magistrate of I Class, Kadiri i.e., an amount of Rs. 2,500/- pertaining to M.C.14/87; Charge No. 2 with regard to the amount of Rs. 1,000/pertaining to E.P. 293/84 in O.S. 363/88; charge No. 3 with regard to amounts pertaining to E.P. 1/90 in O.S.230/77 and E.P. 130/86 in O.S. 272/ 84 and charge No. 4 and charge No. 5 are proved against the delinquent." (It may be noted that there were as many as 21 items of misappropriation and non-accounting regarding Principal Munsif Magistrate's Court, Kadiri, 8 items regarding Sub Court, 2 items of Prl. Munsif Magistrate's Court and 1 item of Addl. J.M.F.C. Court Kadiri which are part of charge No. 1 out of which only the items of charges which are established are found in para 38 supra).
Since the learned Advocate for the appellants pointed out that the materials gathered during enquiry constitutes a misconduct of criminal misappropriation and criminal breach of trust which is held in the contrary by the learned single Judge, we have proposed to examine such materials to resolve such a controversy.
9. Items 2 and 3 of Charge No. 1 are of Principal District Munsif's Court, Kadiri relating to Rs. 1,100/- cash in each of the deposits - A.911/90 and E.P.I /90 in O.S. 230/87. They were deposited into Court on 9-4-90 and 24-4-90 respectively. Entries were made in the cash memos regarding the deposits. These amounts were entrusted to the respondent on the same day. They were not accounted for even till the date the District Munsif checked them up. Even 20 days thereafter, he neither accounted for it nor deposited it into the Treasury. But they were deposited only on 8-1-91 after the show-cause notice and the threat of disciplinary action. The delay in accounting and depositing the same are found to be 9 months and 8 months 15 days respectively. The explanation of not giving the cash memos immediately by the concerned Clerk to the respondent, misplacing of the memos till the laches were pointed out, the pressure of work and forgetting about the said amounts for such a long time are rightly held to be unworthy of acceptance. The conduct of the respondent in not depositing the amount even after 20 days of pointing out by the District Munsif is a clear indication of such amounts not being with him in Court-cash-box etc., glaring of his misapprorpriating them. Rightly it is stated that he would have not remitted the amount if not checked or noticed by the District Munsif. So, what he remitted, could not have been the same amount deposited, but some other amount managed to be got by him. Under such circumstances, it is a clear case of misappropriation and not a temporary misappropriation.
10. Item No. 1 in charge No. 1 for an amount of Rs. 1,100/- of Sub-Court in A. No. 705 /89 although unaccounted for a period of six months and 4 days, the explanation of the respondent is accepted and the charge is not held to be proved as stated by the Enquiry Officer in the report (para 27 of the report), but wrongly held to be proved in para 38 supra. That should be excluded from the proved charges. Another item of Principal Munsif Magistrate's Court under Charge No. 1 is Rs. 660/- deposited in O.S. 91/89 towards stamp duty and penalty on 17-3-1989. It was not accounted for till 31-1-90. While admitting the entrustment of such an amount to him, the respondent came out with an explanation that he could not notice it till 31-1-90 when it was brought out during the checking by the Presiding Officer and such an explanation is rightly rejected as without any basis (the delay in not accounting for it is 10 months 14 days). There is not even a slight indication either in the explanation of the respondent about such a lapse that such an amount was kept in the cash-box in the Court duly accounted for in any manner much less what he remitted on 31-1-90 was the very amount which was entrusted to him. The inference for this is inevitable that till he remitted that amount on 31-1-90 after checking it, it had been misappropriated by the respondent.
11. The next item of misappropriation is of Rs. 2,500/- in M.C.14/87 of Additional Judicial Magistrate of 1st Class' Court mentioned at item No. 1 in charge No. 1 which was deposited in Court and entrusted to tine respondent on 30-3-89. It was found to be not accounted for till 23-1-91 i.e., for a period of one year nine months and twenty three days. The explanation of the respondent that the register was with the Crrminal Cash Clerk and that it was not available and he forgot it to account for and deposit the same into treasury. That is found to be not acceptable as the respondent was setting up similar explanation of forgetfulness in dealing with such amounts. Such a huge amount relating to a matrimonial case remained with the respondent for such a long time. His failure to give plausible explanation or acceptable explanation raises a serious doubt whether at all, such amount was kept in the Court-box or elsewhere in the Court and perhaps if it was not noticed by the Presiding Officer of the Court during checking, he would have not at all remitted the amount into treasury. That should raise a simple inference of misappropriation of such amount by the respondent. All the remaining items in tine charges held to have been established in para 38 of the report and accepted by the disciplinary authority, (the District Judge) are found to be the misconduct of dereliction of duty and gross negligence. All the explanations in relation to such items are found to be unacceptable. The general explanation is that there was pressure of work and the respondent was ill for some time and there were some family problems for him. On the face of them, they could never be satisfactory explanations for such misappropriation of the public funds. It is significant to note that the allegations of gross negligence, dereliction of duty and misappropriation related to 31 items for a period extending almost to two years. Similar explanations were given by the respondent in regard to so many items of non-accounting and misappropriation. Such explanations were found to be not reliable. Although the benefit of explanation was given in regard to so many items, the fact still remains that he had not accounted for so many items of the cash, cheques etc., concerning many cases of Munsif Court and Sub-Court and but for disclosure due to checking by the Presiding Officer, he would have reconciled himself wi th his known misconduct. Judged in that back-ground regarding the items of the charges proved against him, the inference of misappropriation regarding nonaccounted items of cash etc., was justified on the part of the Enquiry Officer and the disciplinary authority.
12. The learned single Judge while accepting the evidence gathered during the enquiry has held that only the misconduct of non-accounting of such items is brought out and not the misappropriation. It is pointed out that there is no clinching evidence of msiappropriation as there was no evidence or circumstance to hold that such items were not found to be in the cash box. It is pointed out that the presence or otherwise of the court-cash-box was not being verified regularly and that there was no verification of such items not accounted for as to whether they were in the cash box at the relevant time. It is also pointed out that the explanation of the respondent that there was a difference of opinion as to whether the amounts paid were brought up into a register or not and as per Rule 238 of A.P. Civil Rules of Practice certain amounts were to be with the Head Clerk for disbursement within a month, required for various purposes. Ultimately it is concluded that unless there is evidence to show that the amount not accounted for was not kept in tine Court cash-box, mere cannot be any proof of misappropriation.. The learned Advocate for the respondent has also presented such arguments supporting the finding of the learned single Judge. On a careful examination of the evidence in the case and the correct legal position, we are not persuaded to agree with such a finding or reasoning of the learned single Judge.
13. Undisputably, misappropriation ought to be a misconduct on the part of a public servant or a Government servant. It is true that misappropriation as a misconduct is not defined anywhere in administrative law or the service rules, but deduced and explained as a misconduct in the back-ground of the facts alleged or established. But misappropriation is brought within the meaning of misconduct by virtue of the general misconduct under Rule 3 of A.P. Civil " Service (Conduct) Rules, 1964 which is similarly found in other service rules like Central Civil Service (Conduct) Rules etc. Sub-clauses (1) to (3) of Rule 3 of tine A.P. Civil services (Conduct) Rules, 1964 reads as follows:
"General: (1) Every Government employee shall be devoted to his duty and shall maintain absolute integrity, discipline, impartiality and a sense of propriety.
(2) No Government employee shall behave in a manner which is unbecoming of such employee or derogatory to the prestige of Government.
(3) No Government employee shall act in a manner which will place his official position under any kind of embarrassment."
Misappropriation of the funds would be a failure to maintain absolute integrity in the first place. Secondly, it would expose an employee as a person behaving in a manner unbecoming of such an employee or derogatory to the prestige of the Government (Judiciary). Ultimately, such a conduct would place such an employee in his official position under a peril of embarrassment. Read in that context, misappropriation would be a clear misconduct within such a rule. It appears that the meaning and consequence of misappropriation is borrowed from an offence in Law of Crimes. Similar is the case in regard to criminal breach of trust. All the implications of such offences covered by Sections 403 to 409 of the Indian Penal Code appears to have been borrowed and accepted in administrative law in regard to such a misconduct. It appears that all the categories of misconduct are not defined and even which are defined in the Conduct Rules are said to be not exhaustive. Therefore, while examining whether a conduct of an employee would amount to misappropriation or criminal breach of trust, the implications of Sections 403 and 405 of the Indian Penal Code are being applied (Pages 149 and 150 of Appointment, Promotion and Disciplinary Action by G.C. Mathur, 1990 Edn.). Significantly the misconduct of misappropriation is termed as criminal misconduct in law as an offence punishable under Section 13(c) of the Prevention of Corruption Act. It appears that Sections 403 and 405 of Indian Penal Code can be read into Section 13(c) of the Prevention of Corruption Act. Thus, a misconduct of misappropriation ought to be a very grave misconduct to contain the ingredients and implications of such provision supra. Thus whenever a misconduct of misappropriation or criminal breach of trust is alleged against a Government servant or a public servant, these ingredients should be present, alleged and established:
(1) The property or fund said to have been misappropriated should belong to the person or the authority alleging misconduct.
(2) There must be entrustment of the property or the funds to the delinquent. v (3) Such property or funds so entrusted must have been converted or misappropriated to self by the delinquent.
(4) Coupled with the other ingredients stated above, the delinquent will not be in a position to account for such property or funds entrusted to him or will be incapable of offering any satisfactory explanation in regard to the same.
Such essential ingredients for a criminal misconduct for the purpose of Section 405 of the Indian Penal Code have been enumerated in Gnaneswar Das Agarwal v. State of U.P., AIR 1991 SC1646 and State of A.P. v. Y. Basavadevudu, . These implications of law regarding the misconduct of criminal misappropriation are being noted to examine the manner in which it should be proved or established. It is true that like a charge or an offence in a criminal case, the misconduct against a delinquent should be alleged and proved by the disciplinary authority. But in regard to certain types of misconduct when once some of the main ingredients are established by the disciplinary authority, the burden shifts on to the delinquent to establish the other ingredients or to rebut the ingredients already established by the disciplinary authority. Undoubtedly, for an alleged misconduct of misappropriation of criminal breach of trust the entrustment of the property or the funds by the Master to the delinquent should be established. In other words, the dominion over such entrusted property or funds by the delinquent should be initially established. In such a situation even in a criminal case, for an offence punishable under Section 409 of the Indian Penal Code for criminal breach of trust, the settled law as laid down in Jaikrishnadas Manohardas Desai v. State of Bombay, is as follows:
"......To establish a charge of criminal breach of trust, the prosecution is not obliged to prove the prescise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he had dominion. The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted, if proved, may in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion."
This view has been consistently followed in all the subsequent precedents of the Supreme Court - Ravindrakumar Dey v. State of Orissa, and Vasanta Moghey v. State of Maharashtra, . It is true that the law so settled has also cautioned that the offence of criminal breach of trust may not in all cases be found merely on the failure to account for the property so entrusted or over which there is dominion even when a date to account, is imposed upon the delinquent, but where he is unable to account for or renders an explanation for his failure to account which is untrue, an inference of misappropriation with dishonest intent may readily be made (in particular J.N. Desai (3 supra).
14. In the present case, not only the entrustment of the public money to the respondent was alleged and established, but also admitted by him. His explanation is not only found to be unsatisfactory but also found to be false. His unaccounting of such funds for such a long period in regard to so many instances and in particular to definite few instances were too general, vague and indifferent. He even went to the extent of saying that he was inexperienced. It is palpably false as he was in service for over two dacades. The explanation that there was pressure of work etc., was equally applicable to all the items and his responsibility when he was bound to disclose to the Presiding Officer about his failure to account for such funds at some intervals and make a record of the same to show his bona fides. On the other hand, it is revealed that he never bothered or cared to account for so many items of the funds entrusted to him, but also did not care to deposit such amounts immediately after the laches were detected and in fact, as noted by the Enquiry Officer and the disciplinary authority, Ke did not deposit the same even till the lapse of 20 days of detection and perhape. he would not be able to have deposited the same into the Treasury, but for the direction. All these circumstances in relation to failure to account for such amounts entrusted to him should clearly raise an inference that he must have misappropriated the amounts which had been entrusted to him till he was forced to deposit such amounts after a long lapse of time.
15. The learned single Judge appears to be not correct in holding that the disciplinary authority was expected to prove that the amount so entrusted was found in the Court cash-box of the respondent and therefore, there was no proof of misconduct of misappropriation. In this context, the manner in which such funds were to be handled by the respondent governed by the Civil Rules of Practice framed by the High Court of Andhra Pradesh, Hyderabad, may be examined. The learned Single Judge has referred to Rule 238 of such Rules. This Rule appears to be a residuary provision in Chapter XVI of the Civil Rules of Practice. It reads as follows:
"238. Cases where payment may be made in cash to officer of Court:-
Notwithstanding anything contained in this Chapter moneys for any of the purposes hereunder mentioned may be paid in cash to an officer of the Court, to be appointed by the Judge. (1) Service of summons in respect of which the. fees cannot be paid in stamps. ;! (2) Allowances to witness (3) Commission Fees (4) Money-order commission for transmission of commissioner's fees.
(5) Judgment-debtor's subsistence moneys.
(6) Tom-Tom charges (7) Charges for fine conveyance of attached property and for feeding attached cattle.
(8) Postage and other charges for calling for records for reference, or for transmission or of decrees to other Courts for execution. (9) Moneys representing the values of non-judicial stamps for sale certificate when the amount does not exceed Rs. 5/-and (10) Safe custody charges payable under Rule 237.
Provided that, if, in the opinion of the said officer, disbursement of the said money is not likely to be made within a month, the procedure prescribed by Rules 225 to 236 inclusive shall be followed.
Provided also that if any cash deposit or any part thereof, is not expended, and if it is not probable that the same will be refunded to the depositor within a month from the date on which it became available for refund, it shall be forthwith remitted to the bank or treasury officer: Provided also that where the amount paid under (9) above is less than Rs. 1/- the Court may retain it for a period not exceeding three months after which if it is not disbursed, it shall be credited direct to the Government as revenue subject to its being refunded to the party entitled to it if and when claimed:
Provided further than in cases where the amount paid under (9) above does not exceed Rs. 5/- and said amount is not likely to be disbursed within a period of three months, it shall, subject to the provisions of the previous proviso, be remitted to the Bank or Tresury Officer".
The first proviso is mandatory that in case the disbursement of such items -1 to 10 is not likely to be made within a month, the procedure prescribed by Rules 225 to 236 are to be followed (such provisions in substance are clear with such amounts). In order to retain such amounts with the official beyond a particular period, the permission of the Presiding Officer has to be obtained.
The second proviso is mandatory that if any such amount is not expended and if it is not possible to refund such amount to the depositor within a month from the date on which it became available for refund, it shall be forthwith remitted to the Bank or the Treasury. The third proviso authorises such an officer to retain such amount with him for a period not exceeding three months if it is in regard to Item No. 9 (moneys representing the value of non-judicial stamps for sale certificate when the amount does not exceed Rs. 5 /-) if it is less than Re. 1 /-. The fourth proviso mandates such a procedure in regard to item No. 9 if the amount does not exceed Rs. 5/- subject to the third proviso. The implication of such rules is clear that the respondent was not empowered to retain any of the amounts so entrusted to him detailed in charge No. 1, for more than a day and at any rate, not more than one month or even three months if tine rule is interpreted liberally. At the same time, he was bound to account for the same once in a day or periodically whenever an occasion arises and obtain permission of the Presiding Officer to retain such amounts with him in the Court cash-box, if he could not remit the same into the Treasury or the Bank. When the respondent admittedly failed to comply with such mandatory obligations and failed to account for such items and came out with unsatisfactory and false explanations, the inference of misappropriation of such funds by him is inevitable.
16. The presumption that the amount entrusted to the respondent must have been available in the Court cash-box is not available in the case. On the other hand, that it remained with the respondent unaccounted for (lies in the presumption) to establish the contrary, was on him either by proper accounting or by proper explanation. The sum and substance of his explanation is nothing but wilful or deliberate negligence, indifference, falsely setting up ignorance of the rules and inexperience, some domestic problems and forgetfulness. Such explanations would never come out from an honest and a bona fide person placed in such a situation. If the instances were few and the intervals between such lapses were small, then such explanation might bear conviction. There is not even a slight indication of the respondent taking such lapses seriously at any time open for rectification and available for repentence and demonstration by bona fide conduct in locating the amount and depositing the same immediately and on the other hand, as already pointed out, he was reluctant either to repent or to rectify by immediate action seeking apology and arrange for depositing the amount forthwith. The learned Single Judge appears to have over-lool J these aspects and circumstances of the case. We are not persuaded to toe in line with such an approach of the matter.
17. Another circumstance which the learned single Judge appears to have depended in favour of the respondent is that he deposited the amount even before he was suspended on 25-1-71. In this connection, reliance is placed on the dictum of the Supreme Court in Narendra Pratap Narain Singh v. State of U.P., 1991 Crl.LJ. 1816 (SC) on behalf of the respondent. The learned Advocate for the appellants has contended that the facts and circumstances of this case are totally different from the one found in the ruling supra and on the other hand, the conduct of the respondent in this case disentitles him for such an inference. There appears to be all the force in such a contention. In that case, the accused while dealing with the articles of Agricultural Department on credit was found to have misappropriated a sum of Rs. 450.26 and he deposited the amount before the investigation was commenced and in those circumstances it was held that a charge under Section 409 IPC could not be sustained. The allegations against the accused were that when he was entrusted with the fertilizers, seeds etc., of the Stores in his official capacity, he has forged the bills and receipts using them as genuine but they were found to be false. There were so many circumstances in his favour and the explanation given in the defence that the bills in question and the cash receipts were not bogus but genuine, has been accepted by the High Court in the Appeal and coupled with that, the conduct of the accused in depositing the amount even before the investigation was commenced was the basis to come to the conclusion that the offence under Section 409 of IPC was not established. Even assuming that such a conduct becomes relevant to know whether the delinquent had really intended to misappropriate the amounts entrusted to him or that he was committing criminal breach of trust by misappropriation, the facts and circumstances of each case are to be examined. On carefully going through the pronouncement of the Supreme Court surpa, it is clear that such an inference has been drawn based on the facts and circumstances of that case. In the present case, the respondent is found to have failed to account for number of items for a period ranging from several days, almost up to two years. He had shown absolute indifference either in regard to accounting of such items or in regard to bringing to the notice of the Presiding Officer much less in exhibiting a conduct to rectify them at any time or at the earliest possible opportunity till it was detected and showed a cold storage attitude even after it was detected and deposited such amount only under the directions of the Presiding Officer and at the threat of action against him. The explanations are found to be totally beyond the comprehension of any honest and sincere employee. It appears that even after the show-cause notice was issued to him, he kept quite for almost 20 days. His depositing such amounts into Treasury after detection, appears to be not spontaneous, natural or bona fide and on the other hand found to be one of reluctance, defensive and unrepentful. Judging the matter in that background, the mere depositing such amount after detection of the misconduct can never be an absolving factor in regard to the misconduct of misappropriation or criminal breach of trust. The law appears to be settled in this regard by the Supreme Court in Viswanadh v. State of Jammu & Kashmir, that when a person is found to have put the Government money entrusted to him to personal use and refunds it when the act of his defalcation came to be discovered does not absolve him to the offence committed by him under Section 409 of I.P.C. The rule equally applies to the conduct of a public servant or a Government servant entrusted with public money or government money after having misappropriated the same chooses to refund or deposit it under certain circumstances. This precedent appears to be direct on the question having due regard to the facts and circumstances of the present case. Therefore, we are of the considered view that the conduct of the respondent in depositing such amount in such situation will not absolve him of the misconduct of misappropriation and criminal breach of trust alleged and proved against him under the charges.
18. We are of the considered view that the disciplinary authority and the appellate authority were totally justified for good and sufficient reasons in coming to the conclusion that the charges of negligence, dereliction of duty and criminal misappropriation had been established against the respondent as detailed supra. We are to be reminded of the powers of the High Court under Article 226 of the Constitution of India in regard to a matter like this. In a latest pronouncement - State Bank of India v. Samarendra Kishore Endow, 1994 (1) SLR 516 the settled law in this regard in State of A.P. v. S. Sree Rama Rao, has been quoted with approval and to read:
"......The High Court is not constituted under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant; it is concerned to determine whether the inquiry is held by an authority competent in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which the findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding under Article 226 of the Constitution".
In this case there is not only some evidence but there is abundant evidence which the disciplinary authority and the appellate authority have assessed to reach the conclusion that the charges are established. No other embellishments supra warranting interference by this Court with such a conclusion is poirtted out, nor established.
19. As regards the penalty of dismissal of the respondent from service imposed by the appellants in the impugned orders, the learned Single Judge appears to have held it as 'harsh' only on the ground that the charges of misappropriation were not established against the respondent. We are unable to agree with such a view and the finding. Here is a specific example of a public servant working in the judicial department entrusted with certain financial responsibilities and who is expected to conduct himself in an ideal manner for others, has not only acted unbecoming of such an official committing serious misconduct including criminal misappropriation, but also betrayed the confidence of the authorities reposed in him in not showing his bona fides at any stage. It may be reminded that in Service Law, no particular penalty is prescribed for a particular misconduct except the classification of the same as minor penalty and major penalty to impose for a proved misconduct depending upon the gravity of the same and having due regard to the facts and circumstances of each case under which such a misconduct is committed. Even without proving the misconduct of criminal misappropriation this was a fit case to impose the penalty of dismissal of the respondent from service. However, the procedure adopted in sending back the matter to the disciplinary authority namely, appellant No. 2 for reconsideration of the penalty to be imposed on the respondent appears to be correct in view of the clear dictum laid down in State Bank of India (8 supra). Even there, it must be impressed that even in regard to the nature of the penalty imposed in a disciplinary enquiry for good and sufficient reasons, the High Court will not interefere under Article 226 of the Constitution of India as laid down therein which can be usefully gathered in para 15 as follows:
"It would perhaps be appropriate to mention at this stage that there are certain observations in Union of India v. Tulsiram Patel which, at first look appear to say that the Court can interfere where the penalty imposed is 'arbitrary or grossly excessive or out of all proportion to the offence committed or not warranted by the facts and circumstances of the case or the requirements of that particular Government service". It must however be remembered that Tulsiram Patel dealt with cases arising under proviso (a) to Article 311 (2) of the Constitution. Tulsiram Patel overruled the earlier decision of this Court in Challappan . While holding that no notice need be given before imposing the penalty in a case dealt with under the said proviso, the Court held that if a disproportionate or harsh punishment is imposed by the disciplinary authority, it can be corrected either by the Appellate Court or by High Court. These observations are not relevant to cases of penalty imposed after regular inquiry. Indeed this is how the said observations have been understood in Parma Nanda referred to above vide para 29. The same comment holds with respect to the decision in Shankara Dass v. Union of India which too was a case arising the proviso (a) to Article 311 (2)."
Significantly in the ruling supra, the appeal of the delinquent was dismissed as a whole, except sending back the matter to the disciplinary authority or the appellate authority to consider whether a lesser punishment is not called for in the facts and circumstances of the case whereby leaving the matter to the discretion of such authority to reconsider and to pass appropriate orders.
20. As a whole, we are totally persuaded to accept the case of the appellants and consequently we allow this appeal and set aside the order of the learned single Judge in W.P.No. 16668/92 dated 25-10-1994 and confirm the orders passed by the appellants against the respondent. No costs.