Jharkhand High Court
Rajesh Prasad vs Bihar State Food & Civil Suppl on 3 February, 2009
Author: R.K. Merathia
Bench: R.K. Merathia, Prashant Kumar
Letters Patent Appeal No. 517 of 2005
Against the order dated 5.7.2005, passed in W.P.(S) No. 2652 of 2005.
--------
Rajesh Prasad .....Appellant
Versus
The Bihar State Food and Civil Supplies Corporation and others
..........Respondents
PRESENT
THE HON'BLE MR. JUSTICE R.K. MERATHIA
THE HON'BLE MR. JUSTICE PRASHANT KUMAR
For the Appellant : Mr. V. Shivnath, Sr. Advocate
For the Respondents : Mr. Ramit Satender, Advocate
-------
By Court This appeal has been filed against the order dated 5.7.2005,
passed by learned Single Judge in W.P.S. No. 2652 of 2005 dismissing
the writ petition filed by the appellant.
2. The appellant was Salesman in Bihar State Food
Corporation. A departmental proceeding was initiated against him.
Charges were with regard to defaulcation of amounts while posted at
different places, insubordination, dereliction of duty etc. In his show
cause, the appellant denied the charges. The enquiry officer on
consideration of the materials on record found that the charges were
proved against him and suggested major punishment. Second show
cause notice was issued to which the appellant filed his reply. The
disciplinary authority agreeing with the findings of the enquiry officer,
passed order of punishment of dismissal; recovery of the defaulcated
amount with interest; and payment of only subsistence allowance,
during the suspension period. The appellant preferred appeal against
such order. The appellate authority considered the whole matter and
affirmed the order of punishment. Against the said orders, the appellant
filed the writ petition in question. Learned Single Judge found that the
first and second charges were proved against the appellant and the
defaulcated amount was recovered form his salary and therefore even
assuming that the third charge was not proved against him, the
aforesaid two charges were more than sufficient for dismissing the
appellant from service and that the order of dismissal of the appellant at
no stretch of imagination can be held to be illegal, arbitrary and
unjustified. Against this dismissal of the writ petition, this appeal has
been filed.
3. Mr. Shivnath, learned senior counsel appearing for the
appellant, took us to the entire materials on record and submitted that
the enquiry report was perverse; the appellant was not given opportunity
to contest the Audit report relied by the enquiry officer; the enquiry
officer could not suggest punishment in his enquiry report; if advance
taken was not returned, it could not be termed as defaulcation specially
when the amount of alleged defaulcation was recovered from the salary of
the appellant; non protest to the recovery did not amount to admission of
guilt by the appellant; and that other persons, who have also defaulcated
amounts, are retained in service.
4. The said submissions are wholly untenable. Mr. Shivnath
could not show how the enquiry report is perverse. For the first time it is
alleged before us and that too orally that the appellant was not given
opportunity to contest the audit report relied by the enquiry officer.
There was nothing wrong if the enquiry officer suggested punishment. If
advance taken is not returned, certainly it is defaulcation.
The impugned order is liable to be upheld only on the
ground that the charge no. 1 with regard to defaulcation was not denied
by the appellant. His contention was that such amount was already
recovered from his salary. He never raised any objection against such
recovery. Thus charge no. 1 stood proved. Even if one charge is proved,
punishment can be awarded accordingly.
5. It is also a settled position that the writ court cannot sit in
appeal over the order passed by the disciplinary authorities unless the
same is perverse or suffers from any serious procedural error causing
prejudice to the delinquent. Re-appreciation of the materials on record
and the findings recorded by the enquiry officer; the disciplinary
authority and the appellate authority, confirmed by learned Single Judge
is not permissible.
6. In the facts and the circumstances of this case, we find that
this appeal has no merit and it is wholly frivolous. Accordingly, it is
dismissed. However, no costs.
( R.K. Merathia, J)
( Prashant Kumar, J)
Jharkhand High Court, Ranchi
Dated the 3rd February, 2009
Rakesh/NAFR