Patna High Court
Shri Nand Kishore Prasad vs State Of Bihar on 28 July, 1966
Equivalent citations: AIR1967PAT133, (1968)ILLJ703PAT, AIR 1967 PATNA 133, (1968) 1 LABLJ 703
JUDGMENT Dutta, J.
1. This application under Article 226 of the Constitution of India is for quashing the order passed by the Commissioner of Patna Division, discharging the present petitioner from Government service and the order of the Member, Board of Revenue, dismissing the petition of revision, which the petitioner had filed as against the above order of discharge. The petitioner hag further prayed for issue of a Mandamus for his reinstatement in service with consequential benefits.
2. It is admitted that the petitioner was formerly employed as a bench clerk in the Court of Shri R. Singh, Judicial Magistrate, Sasaram and while he was thus employed, one G. R. Case No. 886C/104 T. R. of 1950, State v. Sarju Choubey, was tried in this Court and 12 accused persons in this case were convicted and sentenced to pay different amounts of fine, as per order passed on 26-4-1950, There was an appeal against this order but the appeal was dismissed. In spite of dismissal of the appeal, however, a wrong entry was made in the fines register by one Triloki Prasad Sinha, the then Fines clerk, about the above fines having been remitted by the order of the Sessions Judge in Criminal Appeal No. 65 of 1950.
Subsequently, as the fine record of the case was not available, the record was reconstructed and notices were issued to all the accused persons to show cause why the amounts of fine money should not be realised. On this, all of them asserted that they had already deposited the total fine amount of Rs. 1081/12 with the Sub-Inspector of Police. Kargahar, on 22-8-1950 On enquiry from the Sub-Inspector of Police. Kargahar, it was reported by him that the said amount had actually been received from the accused persons at the police station and had been remitted by him by money orders to the aforesaid Magistrate on 4-9-1950 The Sub-Inspector of Police further produced the money order acknowledgment receipts in support of this contention and the acknowledgment receipts purported to show that the amounts had been received on 8-9-1950 by the present petitioner, who was the bench clerk of the aforesaid Magistrate at that time. It was further found that the amounts had not been credited to the Government accounts. The petitioner denied his signature on the acknowledgment receipts and also denied about having received the money.
The Fines Clerk, Triloki Prasad Sinha, alleged that the above entry in the Fine Register as to the result of the appeal had been made by him on the basis of a memo of the result of appeal supplied to him by the present petitioner, who was then in charge of the fine records of the Court of Shri R. Singh. The petitioner, on the other hand, alleged that the fine record used to be maintained by the fines clerk Triloki Prasad Sinha. The Magistrate in charge of fines, Sasaram, thereafter, filed a report for prosecution of both the petitioner and Triloki Prasad Sinha for offences under Sections 120-B, 409, 466, 468, 474 and 477-A of the Indian Penal Code. A prosecution was lodged against both the persons but it transpires that both of them were discharged under Section 207 (A) (6) as per order passed by Shri A.K. Sinha, Judicial Magistrate, 1st class, Sasaram, on 27-2-1956. Departmental proceedings were thereafter started separately against both the present petitioner and the fines clerk, Triloki Prasad Sinha.
3. In the departmental proceedings against the present petitioner, the enquiry was conducted by the Subdivisional Officer, Sasaram, who submitted a report on 28-2-1960 after concluding the enquiry. On a consideration of this report and the relevant materials, the District Magistrate passed an order on 19-3-1960 dropping the above proceedings. A notice was thereafter issued by the Commissioner of Patna Division calling upon the petitioner to show cause as to why he should not be dismissed from service on basis of the charges against him and after considering the show cause petition filed by the petitioner, the learned Commissioner passed an order discharging the present petitioner from service, as mentioned above. The petition of revision filed by the petitioner against this order has been dismissed by the Member of Board of Revenue.
4. It appears that in the departmental proceeding, the following two charges were framed as against the petitioner:
"(1) Dishonestly receiving Rs. 1068 being the fine money collected and sent by three MOs, by the S. I. of Police, Karagahar, in respect of criminal case No. GR 886/TR 104 on 4-9-50 to the Court of Shri R. Singh. Judicial Magistrate. Sasaram of whom he was the bench clerk.
(2) Issuing an incorrect extract of order of the appellate Court in criminal appeal No. 65 of 1950 to Shri Triloki Prasad, the then Fines Clerk, in conspiracy with Triloki Prasad, and misappropriating Rs. 1068 sent by the S. I. of Police. Karghar on 4-9-50 "
The fact that the petitioner was the bench clerk of Shri R Singh, Magistrate, at the time when the accused in the aforesaid G. R. case was convicted and sentenced to different amounts of fine on 26-4-1960 is not disputed The petitioner further admitted that he continued to work as bench clerk of the Court of this Magistrate till some time in April. 1952, when he was transferred from Sasaram to Buxar. The further fact that the appeal preferred by the accused in the above case was dismissed is also not disputed and it is thus quite apparent that the aforesaid entry in the fines register, which was admittedly made by the fines clerk Triloki Prasad Sinha, about the fines having been remitted by the Sessions Judge in appeal was an altogether false entry.
5. The fact that the fine amounts had been duly realised from the convicted persons by the Sub-Inspector of Police, Kargahar and that the amounts had been remitted to the Court of the aforesaid Magistrate by three money orders and the amounts were actually received at Sasaram and the money order acknowledgment receipts purported to bear the signature of the present petitioner is also not disputed. The case of the petitioner is, however, that he neither received the amounts nor signed on the above money order acknowledgment receipts and he had nothing to do with the receipt of the money or with the aforesaid false entry in the Fines Register. There is, undoubtedly, no direct evidence to show that the amounts in question were received by the present petitioner and it appears from the discharge order in the criminal case filed against the petitioner and Triloki Prasad Sinha that although the money order acknowledgment receipts were sent to a Handwriting Expert for comparison with the signature of the petitioner, the Expert could not Rive any opinion about the same.
The contention of the present petitioner is that the findings of the Commissioner and the Member, Board of Revenue, as to the charges, as against him, having been proved are based on no evidence whatsoever, either direct or circumstantial, and, as such these orders cannot he sustained. It is well established that the mere fact that the evidence as against a Government servant has not been found to be sufficient for his conviction in a criminal case, is by itself no ground for setting aside an order passed against him in a departmental proceeding based on the same allegation, if such an order is supported by some evidence and is not based on merely conjectures and surmises or is passed without any evidence whatsoever. Reference may be made in this connection to the Full Bench decision of our own High Court in the case of Bhagwati Singh v. District Electric Engineer, AIR l966 Pat 205 in which the following observations were made:
"So long as there is some evidence, however meagre it may be to support the findings of the Departmental Authorities, it will not be proper for this Court to set aside those findings on the ground that the best evidence was not adduced." (Vide page 207. col. 2) Reference may also be made to the following observations of the Supreme Court in the case of Board of High School and Intermediate Education v Bagleshwar Prasad, AIR 1966 SC 875.
"In the matter of the adoption of unfair means, direct evidence may sometimes be available, but cases may arise where direct evidence is not available and the question will have to be considered in the light of probabilities and circumstantial evidence. This problem which educational institutions have to face from time to time is a serious problem and unless there is justification to do so, Courts should be slow to interfere with the decisions of domestic Tribunals appointed by educational bodies like the Universities. In dealing with the validity of the impugned orders passed by Universities under Article 226 the High Court is not sitting in appeal over the decision in question, its jurisdiction is limited and though it is true that if the impugned order is not supported by any evidence at all, the High Court would be justified to quash that order. But the conclusion that the impugned order is not supported by any evidence must be reached after considering the question as to whether probabilities and circumstantial evidence do not justify the said conclusion. Enquiries held by domestic Tribunals, in such cases must, no doubt, be fair and students against whom charges are framed must be given adequate opportunities to defend themselves and in holding such enquiries, the Tribunals must scrupulously follow rules of natural justice but it would, we think, not be reasonable to import into these enquiries all considerations which govern criminal trials in ordinary Courts of law" (Vide page 878, para 12).
6. The above decision of the Supreme Court, no doubt, related to a case regarding use of unfair means in examination by some of the examinees, but the principles as laid down therein are equally applicable to enquiries as made by other domestic Tribunals. We have, therefore, to see if the orders as passed by the Commissioner and the Member, Board of Revenue, are not based upon any evidence whatsoever, as contended on behalf of the petitioner.
7. The first point that has to be noted in this connection is that it was the duty of the Bench clerk to prepare a fine record after imposition of the sentence of fine in the aforesaid case as the fine amounts were not paid immediately The petitioner does not deny this but the case, as made out by him in para 6 of his writ petition is as follows:
"In case an offender did not propose to pay the fine at once, a supplementary fine record would be started simultaneously and would be sent to the clerk in charge of the fines along with distress warrants for realisation. Beyond transmission of the fine cheques or the supplementary fine records to the officers concerned, according as the case may be, the petitioner bad absolutely nothing to do with the realisation of fine".
8. It appears that in the counter affidavit filed on behalf of the State of Bihar, the allegations as made in para 6 of the writ application, were not denied and, on the contrary, in para 3 of the counter affidavit, it was mentioned as follows:
"That the contentions of paragraphs 1, 3, 4, 5, 6, 7 and 8 are not denied."
It transpires, however on examination of the relevant record that although this plea as taken in para 6 of the writ petition was not denied in the counter affidavit, this was not in accordance with the actual practice prevailing at the time the fines were imposed and the fine amounts were received. The original record of the enquiry proceedings was produced before us by the opposite party at our instance and we had the advantage of examining the entire record.
It transpires therefrom that three witnesses were examined in the enquiry proceeding against the present petitioner, these witnesses being No. 1 Triloki Prasad Sinha, the aforesaid Fines Clerk, No. 2 Rang Bahadur Singh who was the Fines Clerk before Triloki Prasad Sinha and No. 3 Kalika Prasad, who was the Head Clerk of the S. D. O.'s Office, Sasaram, at the relevant time. It appears from the evidence of those witnesses that Triloki Prasad Sinha was not the Fines Clerk either at the time when the fines were imposed in the above case in April, 1950 or at the time when the fine money was remitted and received in September. 1950. At that time, Rang Bahadur, was the Fines Clerk, and he remained in charge till the end of December, 1950 and Triloki Prasad Sinha took over charge from him in January, 1951.
The evidence of Triloki Prasad Sinha is that at the time he took charge from Rang Bahadur, he had taken charge of only the fines register and not of the fine records and he took charge of the fine records of all the Courts from all the respective bench clerks under the orders of the Collector in his inspection note of the fines department of Sasaram in March, 1951. According to his evidence, prior to 26-3-1951 [he bench clerks of different Courts were in charge of the fine records of their Courts. These statements regarding fine records as made by Triloki Prasad Sinha are, no doubt, open to the criticism that these have been made by an interested person as a departmental proceeding was pending against him also. But it appears that his version on this point has been amply supported by the other two witnesses, namely, Rang Bahadur and Kalika Prasad.
The relevant statement of Rang Bahadur in this connection was as follows:
"So far I remember. I did not deal with the fine record of any other Court when I made over charge. The procedure then was that the bench clerk used to maintain the fine record."
The statement of the Head Clerk. Kalika Prasad. on this point was as follows:
"I attended the inspection of fines section by Sri Gordon the then Collector. The Peshkar concerned used to deal with the fine record. I cannot say anything about the extracts but fine records used to be with the bench clerk concerned. The marginal notes on the inspection of fines department by Sri Gordon are in my hand. Its copy has been endorsed to fines clerk for compliance. It has also been mentioned there that all records have to be taken charge of by the fines clerk by 14-5-51. It was discovered at the time of inspection that the fine records were not with fines clerk and that this practice had to slop.
It appears that the inspection note of Mr. Gordon was also marked as an exhibit on being proved by this witness, but that was not found by us with the records produced before us. The above statements as made by Rang Bahadur, the former Fines Clerk, and Kalika Prasad were not challenged by the present petitioner in cross-examination. Our attention was, however, drawn to the Government of Bihar, Appointment Department, letter No. 10499-A dated 27-12-1949 which was issued in connection with the introduction of the scheme of separation of executive and judicial functions in Patna and Shahabad districts with effect from 3-1-1950.
In para 19 of this letter, it was laid down that until further orders, the Judicial and Munsif Magistrates would send their record of fines to the District Magistrate where all further actions will be taken under his direction. It would appear, however, from the evidence, already referred to, that although such a direction was given in the above letter, in actual practice, this direction was not being followed at the relevant time and all the fine records were being maintained by the respective bench clerks, till as late as the inspection made by the District Magistrate, Mr. Gordon sometime in March, 1951 and, he thereafter directed that all the fine records must be made over to the fine clerk by 14-5-1951. In view of this fact, the contention of the petitioner that after imposition of the sentence he had only to prepare the fine record and send the same to the fines clerk and he had no concern whatsoever with the question of realisation of fine thereafter is quite untenable. There cannot be the slightest doubt that in his capacity of the bench clerk of the Court of Sri R. Singh, the petitioner had actually remained in charge of the fine records of that Court till at least some lime in May, 1951, that is, till long after the receipt of the fine amounts by money order in September, 1950.
The fine amounts in the above case had been realised and remitted to the Court concerned by the Sub-Inspector of Police evidently on the basis of some distress warrants issued by the Court. Being in charge of the Fine Record, it was evidently the duly of the petitioner to take necessary steps for realisation of the fine amounts. As such if he had nothing to do with the receipt of the aforesaid money order amounts, he could not have failed to pursue the matter as in that case, so far as his own fine record is concerned, the amounts would have continued to be shown as pending for realisation The very fact that he neither look nor claims to have taken any further action in this mailer, although the fine records appear to have been in his charge till at least some time in May, 1951, that is, till a period of more than 8 months after the receipt of the money is, undoubtedly a strong piece of circumstantial evidence against him.
The aforesaid entry in the fine Register as to remission of the fine amounts, which was admittedly made by Triloki Prasad Sinha after he joined as Fines Clerk In January, 1951, WHS evidently made with a view to prevent detection of the fact that the fine amounts had been misappropriated and, as such, there cannot be the least doubt that the person who misappropriated the money was also a party to this false entry and the above entry was made by the Fine Clerk in collusion with him, In these circumstances, it is not possible to accept the contention of the petitioner that there was no evidence whatsoever either direct or circumstantial as against him and that the order of discharge as passed against him is bused upon no evidence whatsoever.
9. Turning now to the orders as actually passed by the Commissioner and the Member. Board of Revenue. I find that in the first part of the Commissioner's order, there is some observation about some strong suspicion as against the present petitioner. The latter portion of the order, however, runs as follows:
"It is evident that the amount of the fine was realised and sent to the Magistrate and it was received by Shri Nand Kishore Prasad. The fine records were with Shri Nand Kishore Prasad and Sri Triloki Prasad Sinha and between them the amount of Rs. 1068 was embezzled. Shri Nand Kishore Prasad appears to be thoroughly unreliable and the punishment in respect of his conduct should be deterrent in nature."
It would thus appear that the Commissioner drew his conclusion about the guilt of the petitioner on basis of the fact already pointed out above, namely, that the petitioner was in actual charge of the fine record and it was his duty to take necessary action for realisation of the fine until due payment thereof. The order as passed by the Commissioner is, no doubt, somewhat cryptic. As the order was an order of reversal of the order passed by the District Magistrate dropping the proceedings against the present petitioner, it was undoubtedly desirable that the Commissioner should have made specific and pointed reference to the aforsaid strong circumstantial evidence against the petitioner, namely, that he was incharge of the fine record and he failed to lake any action in the matter after receipt of the above money order amounts in September, 1950, although he remained incharge of the fine record till sometime in May, 1951. This aspect has been somewhat more elaborately referred to in the order of the Board of Revenue, in which the following observation was made:
"If the fine was not paid, it was expected that the petitioner should have taken action for issue of distress warrant and for taking further action with regard to imprisonment in default."
The mere fact that the Commissioner has not discussed in detail the circumstantial evidence against the petitioner and has made only a somewhat cryptic reference to the same, does not appear to be a sufficient ground for setting aside his order or the order passed by the Member, Board of Revenue, as in actual fact some strong circumstantial evidence as against the petitioner had been brought on record in the departmental proceedings against him. As already mentioned, the order passed in a departmental proceeding or other domestic Tribunals cannot be quashed in a petition under Article 226 of the Constitution of India, if there is some evidence to support the findings and the mere fact that the evidence may not be sufficient for conviction in a criminal case is no ground whatsoever for setting aside such an order.
10. There is thus no merit in file present petition and it is accordingly dismissed with cost of Rs. 100 only.
Narasimham, C.J.
11. I agree.
12. The charges against the petitioner related to dishonest receipt of a sum of Rupees 1068, being the fine collected by the local police in execution of the distress warrant from the convicted persons and remitted to the Judicial Magistrate concerned, and to the sending of an incorrect extract from the order of the appellate Court in the Criminal Appeal with a view to facilitate the misappropriation of the said sum. Admittedly the petitioner was the Bench Clerk of the trying Magistrate during the relevant period. One Sri Triloki Prasad Singh was the Fines Clerk. Though the money was realised by the local police in execution of the distress warrant issued against the convicted persons, its receipt was not recorded in the lines Register maintained by the Fines Clerk, but on the contrary it was made to appear that the fines were remitted on account of the successful appeal before the appellate Court. This is now admitted to be untrue. There was no direct evidence to show that it was the petitioner who received the money from the Post Office. There is also no direct evidence to show that it was the petitioner who sent an untrue extract from the judgment of the appellate Court to the Fines Clerk Mr. Chatterji for the petitioner, therefore, urged that this was a case of no evidence at all and that consequently this Court should quash the order of the Member, Board of Revenue, which affirmed the order of the Commissioner.
13. It is true as pointed out by my learned brother, that the orders of the Commissioner and the Board of Revenue are very cryptic and they do not exhaustively deal with various aspects of the case It is true that they were exercising powers of revision and there was no statutory duty cast on them to give elaborate reasons while reversing the order of the District Collector, but nevertheless the Commissioner should have dealt with the case exhaustively as he was not accepting the finding of fact of the original authority namely, the Collector.
14. But the main question which arises for consideration before us is whether this is a fit case for us lo, interfere with the order of the Additional Member. Board of Revenue. The Additional Member relied mainly on the probabilities and circumstances of the case. The petitioner was admittedly the Bench Clerk of the Magistrate when the fine was imposed and also for some period thereafter. The Additional Member observed that "if the fine was not paid it was expected that the petitioner should have taken action for issue of distress warrant and for taking further action with regard to imprisonment in default".
Though this portion of the order of the Additional Member, Board of Revenue, was challenged as based on no evidence, this adverse comment must be rejected because, as pointed out by my learned brother, the record of the departmental proceedings shows clearly that there was some evidence to the effect that the fine record was with the petitioner during the relevant period. Hence it was clearly his duty to pursue the matter until either the fine was duly realised, or else, the imprisonment in default of fine was undergone by the convicted persons and the fines were duly remitted by the District Magistrate. It is difficult to imagine how the fine remitted by the local police after realisation of the distress warrant from the convicted persons could have become untraceable in the office of the Judicial Magistrate and yet no further action was taken by the Magistrate either to realise the fine or to take steps for sending the convicted persons to jail in default of payment of the fine.
In the circumstances of this case the Additional Member, Board of Revenue, was justified in holding that the misappropriation of the fine money sent by the police and the subsequent incorrect entry made in the Fines Register could not have been done by the Fines Clerk without the connivance of the petitioner who was the Bench Clerk in charge of the fine record As pointed out in the recent judgment of their Lordships of the Supreme Court in AIR 1966 SC 875, where the finding of the domestic Tribunal, though not based on direct evidence, is based on the broad probabilities and circumstances of the case, it will not be proper for this Court in exercise of its writ jurisdiction to interfere with that finding. This is not a case of mere negligence on the part of the petitioner to discharge his duties but it is a case of an omission deliberately made with a view to connive (to take a view most favourable to the petitioner) at the misappropriation of the money by the Fines Clerk.
15. Hence this Court should not interfere with the order of the Additional Member. Board of Revenue.