Himachal Pradesh High Court
Jaswant Singh vs State Of H.P. And Others on 27 May, 2015
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CWP No.4927 of 2010.
.
Decided on : 27th May, 2015.
Jaswant Singh .....Petitioner.
Versus
State of H.P. and others.
....Respondents.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1
For the Petitioner:
For respondent No.1:r to
Mr. Ajay Sharma, Advocate.
Mr. Vivek Singh Attri, Dy. A.G.
For Respondents No.2 and 3: Mr. K.D. Sood, Senior Advocate with
Mr. Mukul Sood, Advocate.
Sureshwar Thakur, Judge (oral)
The petitioner is serving as a clerk with respondent No.3. In the year 1999, during the course of performance of duties by the petitioner as a clerk at Baba Balak Nath Temple Trust, Deot Sidh, Badsar, District Hamirpur, H.P., he is alleged to have embezzled an amount of Rs.10,000/- odd. Respondent No.3 on acquiring knowledge qua the factum of the petitioner having, during the course of performance of his additional duties as a clerk under respondent No.3, purportedly embezzled a sum of Rs.10,000/- odd, served upon him a memorandum/articles of 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 18:15:58 :::HCHP 2charge comprised in Annexure R-2/1, appended to the reply furnished by respondents No.2 and 3. The petitioner appeared .
before the Sub Divisional Officer (Civil), Baba Balak Nath Temple Trust, Deot Sidh, Badsar, District Hamirpur, H.P., and recorded before him an admission of his having embezzled an amount of Rs.10,000/- odd. Given the confession/admission recorded by him before the Sub Divisional Officer (Civil)/Temple Officer, Baba Balak Nath Temple Trust, Deot Sidh, Badsar, the disciplinary authority was constrained to a impose penalty upon the delinquent petitioner comprised in Annexure P-3.
2. The learned counsel appearing for the petitioner has concerted to erode the efficacy of the confession/admission of guilt purportedly recorded at the instance of the petitioner/ by him, before the Sub Divisional Officer (Civil)/Temple Officer, Baba Balak Nath Temple Trust, Deot Sidh on the score of it having been recorded in an ingenuously devised manner, inasmuch as it having been recorded in sequel of the petitioner having signed a blank paper. Further succor is edeavoured to be lent to the said argument on the score of the fact that given the revelation in the memorandum appended to the rejoinder furnished by the petitioner to the reply of the respondent of there being a denial at ::: Downloaded on - 15/04/2017 18:15:58 :::HCHP 3 his instance of the articles of charge on a date contemporaneous to the recording of the confession of guilt at his instance/by him, .
by the Sub Divisional Officer (Civil), Baba Balak Nath Temple Trust, Deot Sidh, there was no occasion for him to hence in quick succession or in quick spontaneity proceed to admit or confess the guilt attributed to him in the memorandum/articles of charge served upon him. Besides, the learned counsel for the petitioner has vigorously also endevoured to sway this Court to set aside the imposition of penalty upon him on the score of it not having been preceded by an opportunity having been afforded to him by the disciplinary authority to show cause qua the penalty as was contemplated to be imposed upon him and as was ultimately imposed upon the petitioner by the disciplinary authority. The learned counsel for the petitioner has also attempted to portray before this Court that even the fact of recording of his seniority in Annexure P-6, wherein his name occurs at serial No.26 is an inaccurate depiction of his seniority arising from the factum of his therein having been inaccurately revealed to have joined service in the year 1991, whereas as divulged by Annexure P-4 (pages 19 and 19- (A) of the paper book) he joined services under the respondents in the year 1989.
::: Downloaded on - 15/04/2017 18:15:58 :::HCHP 43. The contentions addressed before this Court by the learned counsel appearing for the petitioner have been in .
entwinement with the relevant and apt record accorded incisive and circumspect study. Even though, the learned counsel for the petitioner has concerted to strip the recording of confession/admission of guilt at his instance/ by him to be stripped off its efficacy, on the score of his signature thereon having been obtained on a blank paper, as also, on the score of, when his having contemporaneously along with its purported recording, displayed his denial to the articles/imputations of the charge, its vigour stands whittled down. However, the aforesaid contention loses its vigour and strength in the face of the instant petition challenging the order imposing penalty upon the petitioner having been belatedly instituted. The vice of delay and laches which the petition acquires, inasmuch as it having been instituted in the year 2010, whereas, the order imposing penalty upon the petitioner was rendered in the year 2001, absorbs as well erodes the efficacy of the contention of the learned counsel for the petitioner that the recording of confession of his guilt at his instance/by him, inasmuch as it being recorded on a blank paper signed at his instance renders it to pale into insgnificance.
::: Downloaded on - 15/04/2017 18:15:58 :::HCHP 54. Furthermore, even if, assuming that the petitioner had contemporaneously along with the factum of his having recorded .
confession qua his having committed the misconduct of embezzlement of temple funds had denied the guilt as ascribed to him in the imputations of conduct/ articles of charge served upon the petitioner, nonetheless, the reliance by the petitioner upon the memorandum, appended to his rejoinder, purportedly revealing denial at his instance of the articles of charge, is an inapposite reliance by the petitioner qua the factum of it having been transmitted to the respondents at a time contemporaneous to the recording of confession of guilt at his instance/by him, by the Sub Divisional Officer (Civil), Baba Balak Nath Temple Trust, Deot Sidh, inasmuch as with the revelation in it, of it having been transmitted and received on 13.01.2000 whereas the recording of admission of guilt by the petitioner occurs subsequently on 10.01.2001, hence, renders it to be not contemporaneously transmitted to the Sub Divisional Officer (Civil), Baba Balak Nath Temple Trust, Deot Sidh along with factum of recording of admission of guilt by the petitioner. Since, the recording of admission of guilt at the instance of the petitioner on 10.01.2001 by the Sub Divisional Officer (Civil), Baba Balak Nath Temple Trust, Deot Sidh is ::: Downloaded on - 15/04/2017 18:15:58 :::HCHP 6 subsequent to the denial of articles of charge by the petitioner, consequently, the contention of the learned counsel for the .
petitioner that there is inter se contemporanity vis-à-vis the recording of confession of guilt at his instance and the denial of charges, hence, given such contemporanity, the recording of confession of guilt by respondent No.3 loses its vigour and strength, faces emasculation. Even if, assuming that the signatures of the delinquent petitioner were obtained on a blank piece of rpaper by respondent No.3 for preparing confession/admission of guilt as attributed to him, nonetheless, the said factum as espoused at this belated stage, especially when the petition hence for its belated institution has been construed to be acquiring the vice of delay and laches, is also rendered to be carrying no legal worth. More so, when the relevant Service Rules i.e. Employees Service Rules-2001, Shi Baba Balak Nath Temple as applicable to the petitioner envisaging availment by him of an efficacious and alternative remedy of institution of an appeal at his instance before the Appellate Authority as envisaged therein also bars as well as estops the petitioner to even when he has not availed the alternative efficacious remedy, to belatedly institute the instant petition before this Court. The effect of the belated ::: Downloaded on - 15/04/2017 18:15:58 :::HCHP 7 institution of the writ petition before this Court when hence it has acquired the vice of delay and laches besides, when the petitioner .
in prompt sequel to the rendition of the impugned order had the alternative remedy to assail it within time envisaged therein, by instituting an appeal before the Appellate Authority contemplated in the relevant service Rules and his having omitted to do so constrains this Court to conclude that he has acquiesced to his misconduct. Obviously, then given his acquiescence to his misconduct arising from his belated endeavour to assail the impugned orders comprised in Annexure P-3 before this Court, strengthens and fortifies the factum of the volitional recording of admission/confession of guilt at his instance/by him, by the Sub Divisional Officer (Civil), Baba Balak Nath Temple Trust, Deot Sidh.
Concomitantly, it is to be construed to be free from the vice of duress or compulsion nor the contention of the learned counsel appearing for the petitioner can be accepted that it was ingenuously recorded on a paper signed blank by the petitioner.
5. The learned counsel appearing for the petitioner has contended that the respondents before imposing the penalty of stoppage of two increments with cumulative effect in sequel to his having been found guilty for his having committed the misconduct ::: Downloaded on - 15/04/2017 18:15:58 :::HCHP 8 of embezzlement of temple funds had not heard him, as such, the impugned order comprised in Annexure P-3 for lack of no .
opportunity having been afforded to the petitioner before the imposition of penalty upon him, is ingrained with an illegality.
However, the said argument does not carry any weight and force, given the acceptance and admission of guilt by the petitione,r as also, given his acquiescence as arising or emanating from the hereinabove discussion qua the factum of his having recorded volitional confession/admission of guilt before the Sub Divisional Officer (Civil), Baba Balak Nath Temple Trust, Deot Sidh. Moreover, when the penalty as imposed upon the petitioner is not either stringent or severe as was imposable upon him for his proven misconduct. Consequently, there is no merit or substance in the contention of the learned counsel appearing for the petitioner in concerting to render illegal or nonest the impugned order comprised in Annexure P-3. Further fortification to the factum of the Sub Divisional Officer (Civil), Baba Balak Nath Temple Trust, Deot Sidh having recorded a volitional confession/admission of guilt of the petitioner is lent by the recitals in Annexure P-4, inasmuch as an enunciation occurs therein of his having in the year 2001 spent the amount received by him while discharging his ::: Downloaded on - 15/04/2017 18:15:58 :::HCHP 9 duties or functions of Clerk at Baba Balak Nath Temble, Deot Sidh, on the treatment of his ailing wife.
.
6. However, before parting, the respondents are directed to consider the fact of mis-reflection or an erroneous reflection of the name of the petitioner in the seniority list comprised in Annexure P-6 which appears to be drawn on an erroneous fact of his having joined the respondent's department in the year 1991, whereas the factum of his having joined the services under the respondents earlier, inasmuch as in the year 1989 is borne out by page Nos.19 and 19-A of the paper book.
7. Consequently, the instant petition is disposed of in the above terms. All pending applications also stand disposed of.
27th May, 2015. ( Sureshwar Thakur ),
(jai) Judge.
::: Downloaded on - 15/04/2017 18:15:58 :::HCHP