Madhya Pradesh High Court
Nagar Panchayat Kymore vs Hanuman Prasad Dwivedi on 1 September, 2020
Author: Sanjay Yadav
Bench: Sanjay Yadav, B. K. Shrivastava
1 WA-812/2020
THE HIGH COURT OF MADHYA PRADESH
(Division Bench)
Writ Appeal No.812/2020
Nagar Panchayat Kymore
versus
Hanuman Prasad Dwivedi
Shri Vikas Mishra, learned counsel for the appellant.
None for the respondent.
CORAM :
Hon'ble Mr. Justice Sanjay Yadav, Judge
Hon'ble Mr. Justice B. K. Shrivastava, Judge
ORDER
(Jabalpur, dated : 01.09.2020) Per : Sanjay Yadav, J :
This Appeal under Section 2(1) of The Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, is directed against the order dated 20.02.2020 passed in Writ Petition No.2903/2010.
2. The writ petition at the instance of respondent was directed against the order dated 04.06.1990 and 09.02.2010. Whereas, by order dated 04.06.1990, the services of the petitioner was dispensed with on the charge of his having embezzled Rs.6512/-.
2 WA-812/2020
3. The controversy emanated from the Audit of the year 1982-83 to 1985-86 wherein the following was recorded:
"iSjk dz- *4* : 6736-00 dk izH{k.k laHkkfor uxj ikfydk ds nSfud osru ij dk;Zjr~ deZpkjh Jh guqeku izlkn f}osnh ,oa Jhfuokl ikaMs }kjk jk'ku dkMksZ dk tkjh jftLVj Øekad & 1- QSDVªh ,fj;k ds ckgj ds O;fDr;ksa dks tkjh jk'ku dkMZ dk jftLVj ,oa 2- ,0lh0lh0 QsDVªh ,fj;k ds fy;s tkjh fd;s x;s jk'kh dk jftLVj** esa fuEukuqlkj jkf'k olwy dj uxj ikfydk fuf/k esa tek ugha dh xbZ %& Øeka deZpkjh dk jk'ku nj jkf'k d uke dkMZ dh la[;k 1 Jh guqeku 3256 2@& 6512- izlkn 00 f}osnh 2 Jh 112 2@& 224-00 Jhfuokl ikaMs mDr mYysf[kr jftLVj Øekad 1 ,oa 2 esa jk'ku dkMZ ds foØ; ls izkIr vk; dks izHkkjh ys[kkiky Jh cnzhizlkn xxZ dks lkSius dk mYys[k gS fdarq Jh xxZ dh ikorh ugha yh xbZ gSA izH{k.k ds izdk'k esa vkus dk ,dek= vk/kkj fyfidksa }kjk la/kkfjr jk'ku dkMZ tkjh fd;s tkus ds jftLVj gh gSA ftUgsa u"V gksus dh vk'kadk ls izH{k.k ny ds i= Øekad 520 fnukad 05-08-1986 }kjk eq[; uxj ikfydk vf/kdkjh dks viuh O;fDrxr vfHkj{kk esa j[kus ds fy, fy[kk x;k FkkA orZeky eq[; uxj ikfydk vf/kdkjh Jh ds-ih- (sic) ds /;ku ls izH{k.k dh tkudkjh vkus ij mUgksusa izdj.k izdj.k ij dk;Zokgh u dj mls nokus ds fy, lacaf/krksa ds izfr mRrj dks ftlesa (sic) fLFkfr izdV dh Fkh] mUgksaus vkSipkfjd :i ls (sic) vxzsf"kr ugha fd;k gSA lacaf/kr izHkkjh ys[kkiky ,oa olwyh dRrkZ fyfidksa }kjk jkf'k ds vkgj.k esa fuEukuqlkj ys[kk fu;eksa dk mYya?ku fd;k gS%& 3 WA-812/2020 1- 2 e0ç0 uxjikfydk ys[kk fu;e 1971 ds fu;e 20 ds vuqlkj jkf'k mnxzg.k dh jlhn lacaf/kr O;fDr;ksa dks ugha nh xbZ gSA 2- e0ç0 uxj ikfydk ys[kk fu;e 1971 ds fu;e 25 ds vuqlkj ;fn çHkkjh ys[kkiky vFkok eq[; uxj ikfydk vf/kdkjh jk'ku dkMZ forj.k ds jftLVj dh fu;ekuqlkj tkap djrs rks ;g laHko ugha gksrk D;ksfd jftLVjksa esas olwyh ls çkIr vk; dks mUgsa gh lkSius dk mYys[k gSA vr% 6736-00 dh olwyh lacaf/kr ls dh tkdj u0ik0 fuf/k esa tek djkbZ tkosa ,oa dh xbZ ç'kklfud dk;Zokgha ls milapkyd LFkkuh; fuf/k laijh{kk tcyiqj dks voxr djk;k tkosA Øekad ¼xksiuh;½ v/kZ 'kkldh; @vkj- ih0,e0@528 fnukad 11-08-86 dks fudk; dks çlkfjr fd;k tk pqdk gS"
4. The respondent/petitioner, a lower Division Clerk in the contingency paid establishment was consequently visited with an order on 04.06.1990 terminating his services on the finding that he embezzled the amount. Aggrieved, respondent approached the Director, Urban Administration with a plea of having handed over the entire amount to the Accountant Shri Badri Prasad Garg and that he has not embezzled any amount. The Director, vide communication No. stha/v/90/Ogh/12697 dated 15.11.1990, called upon the Chief Municipal Officer, Municipal Council, Kymore to reinstate the respondent. The order, however, was not acted upon. Respondent thereafter preferred a Writ Petition: Miscellaneous Petition 4 WA-812/2020 No.3009/1991; however, the same was dismissed on 06.01.1994.
5. Later, on an enquiry conducted by the Local Fund Audit in the year 2008 led to discovery of the fact that it was the then Accountant Shri Badri Prasad Garg who was accountable to deposit the said Rs.6512/-. The findings led the Regional Deputy Director, Insurance, Local Fund Audit issue a letter on 03.12.2008 addressed to the Chief Municipal Officer, Nagar Panchayat Kymore, for initiating an action against the then Cashier and Accountant Shri Badri Prasad Garg. Consequent whereof, by notice dated 26.12.2008 said Shri Badri Prasad Garg was called upon to deposit the amount of Rs.6512/-, which later on was recovered from him.
6. These developments and the revelation of the fact that the person responsible for the shortage of Rs.6512/- was the then Cashier and Accountant Shri Badri Prasad Garg led the petitioner file a Writ Petition No.10285/2009 for quashment of his termination. The Writ Petition was disposed of on 06.11.2009 with observation that "... looking to the fact that the auditor of the respondent found that the amount was to be 5 WA-812/2020 deposited by the cashier and not by the petitioner" and direction to decide the representation.
7. That by order dated 09.02.2010 the representation was rejected on the ground that earlier petition preferred by the respondent was dismissed and that the order of recovery against said Shri Badri Prasad is being re-examined on the representation by him. Aggrieved, respondent filed Writ Petition No.2903/2010 challenging the order dated 9.2.2010.
8. It is pertinent to note from the facts on record that during pendency of Writ Petition No.2903/2010, President in Council in its meeting held on 03.06.2013 finally held said Shri Badri Prasad Garg responsible for Rs.6512/- and directed its recovery from him and also for action against him. The proposal and the decision thereon by the President in Council in its meeting dated 03.06.2013 is reproduced for ready reference.
dk;kZy; uxj ifj"kn dSeksj ftyk&dVuh ¼e-iz-½ izslhMsaV bu dkSfly dh cSBd fnukad 03-06-2013 dks fy, x, fu.kZ; dh lR;izfrfyfiA izLrko Øekad %01%& vads{k.k o"kZ 1982&83 ls 1985&86 rd ds vk{ksi Ø- 04 vuqlkj xou izHk{k.k dh jkf'k :i;s 6512-00 tek djk;s ,oa nks"kh deZpkfj;ksa ds fo:) 6 WA-812/2020 vuq'kkluRed n.MkRed dk;Zokgh ds fu.kZ; gsrq fopkj&foe'kZ ,oa fu.kZ;A ladYIk Øekad 324%& izdj.k izLrqr gqvk] eq-u-ik- vf/k- }kjk izdj.k ds laiw.kZ rF;ksa dh tkudkjh lnu dks nh xbZ] ,oa ewy vkfMV vk{ksi Ø-04 o"kZ 1982&83 ls 1985&86 rd dks i<+dj lquk;k x;kA ftlesa fd rRdkyhu izHkkjh ys[kkiky dks mRrjnk;h Bgjk;k x;k gS] lkFk gh mRrjnkf;Ro fu/kkZj.k laca/kh {ks=h; milapkyd LFkkuh; fuf/k laijh{kk tcyiqj ds vkns'kksa ls Hkh voxr dkjk;k x;kA ;g Hkh voxr djk;k x;k fd Jh cnzh izlkn xxZ rRdkfyu izHkkjh ys[kkiky ds vkfMV vk{ksi vuqlkj mRrjnk;h ekurs gq, dk;kZ- }kjk olwyh ;ksX; jkf'k dk vk/kk muds osru ekg vizsy 2013 ns; ebZ ls dVkSrh dj fudk; dks"k esa tek djk;k tk pqdk 'ks"k izk'kfud dk;Zokgh okafNr gSA Jh xxZ }kjk vius i{k esa nLrkosth lk{; izLrqr djus gsrq vkt fnukad 03-06-2013 dks pkgk x;k FkkA Jh cnzhizlkn xxZ mifLFkr gq, muds nks"kh u gksus ds laca/k esa dksbZ nLrkosth lk{; izLrqr ugha fd;s x;sA vr% Jh cnzhizlkn xxZ dks iw.kZ lquokbZ dk volj fn;k x;kA leLr rF;ksa ,oa izLrqr vfHkys[kksa ds vk/kkj ij fu.kZ; fy;k tkrk gS fd vk{ksi varxZr olwyh ;ksX; jkf'k :- 6]5]12-00 ftlesa ls vk/kh jkf'k iwoZ ls gh Jh xxZ ds osru ls dkVk tkdj dks"k esa tek djkbZ tk pqdh gSA vc rd dh xbZ dk;Zokgh dh izof"V djrs gq, Jh cnzhizlkn xxZ dks mRrjnk;h ekuk tkdj 'ks"k olwyh ;ksX; jkf'k :- 3]256-00 mudks bl ekg ns; osru ls dkVk tkdj uxj ifj"kn dks"k esa tek djkbZ tkos ,oa LFkkuh; fuf/k laijh{kk dks iw.kZ jkf'k tek gksus dk izfrosnu Hkstk tkdj vads{k.k vk{ksi izHk{k.k dk fujkdj.k djk;k tkosA Jh cnzhizlkn xxZ ds fo:) izk'klfud dk;Zokgh djrs gq;s fu;ek 7 WA-812/2020 varxZr y?kq'kkfLr fuank vkjksfir dh tkrh gS] vr% eq[; u-ik- vf/kdkjh fu;ekuqlkj dk;Zokgh djsaA fu.kZ; loZ lEefr ls ikfjrA
9. Consequent whereof, by order dated 04.06.2013 the said Shri Badri Prasad Garg was inflicted the penalty of censure. Besides, the recovery of the said amount was also made.
10. These facts, which went uncontroverted, led learned Single Judge hold that "the petitioner has been punished wrongly and his services have been terminated on the wrong premise." And that though an employee on a contingent establishment he was entitled for an opportunity of hearing before being stigmatized of having embezzled Rs.6512/-. Accordingly, learned Single Judge set aside the termination of the respondent and directed for his reinstatement with all consequential benefits including the backwages.
11. Nagar Panchayat Kymore is before us in this intra Court appeal against the impugned order on the ground that learned Single Judge glossed over the aspect that the respondent having suffered an order of dismissal of Petition:
Miscellaneous Petition No.3009/1991 wherein it was held that 8 WA-812/2020 he violated the provisions of Madhya Pradesh Municipal Council Accounts Rules, 1971, was rightly terminated from service was estopped from challenging the order of termination against. It is further contended that learned Single Judge further glossed over the fact that the certificate on the basis whereof, the Regional Deputy Director issued the letter on 03.12.2008 was a forged document as would have led to exoneration of the respondent of his act of embezzlement.
12. Contention that a Petition, M.P. No.3009/1991, filed by respondent/petitioner against his termination stood dismissed on 6.1.1994, therefore, he was not entitled for any relief, are taken note of and rejected at the outset. Evidently, by order dated 6.1.1994, the petition was dismissed at motion hearing stage while disbelieving the petitioner that he handed over the money collected by him to one Shri Garg, which later on being found to be correct that the money was given to Shri Badri Prasad Garg the then Accountant/Cashier, led to a direction in Writ Petition No.10285/2009 for consideration of the representation in the wake of facts which were not available in M.P. No.3009/1991. Therefore, in our considered opinion, 9 WA-812/2020 when on discovery of facts it stood established that the respondent/petitioner had not embezzled the amount, the order of termination thus lost its very existence. In these fact situation, the order in M.P. No.3009/1991, in our considered opinion, was not an embargo for testing the correctness of termination order dt. 4.6.1990.
13. Further contention that the document alleged to be forged is a certificate issued by the Chief Municipal Officer, Municipal Council, Kymore vide No. u-ik-dSeksj@86&87 D;w@lh,evks dSeksj fnukad 25-07-1986. The matter was thoroughly examined by the Local Fund Audit, State of Madhya Pradesh whereon the Regional Deputy Director, affirmed vide his communication dated 3.12.2008 that it was Shri Badri Prasad Garg, Cashier/Accountant who was accountable for the amount of Rs.6512/-. Accordingly, Shri Garg was called up by letter No. u-ik-@2008&09 fnukad 26-12-2008 to deposit the said amount. Thereafter, by order dated 4.6.2013 Shri Garg was also punished with the penalty of censure. This order was in furtherance to the resolution dated 3.6.2013 by the President in Council.
10 WA-812/2020
14. Evidently, in none of these proceedings undertaken on the basis of the letter dated 3.12.2008 by the Regional Deputy Director, Local Fund Audit, a doubt was raised as to the certificate issued by the then Chief Municipal Officer. Even in the return filed in the Writ Petition, no specific allegations are made that the certificate dated 25.7.1986 is a forged document. The only contention raised in Paragraph 3 of the return was that the petitioner has not produced any reliable document in his support and that the Audit Section believed the said certificate. Pertinent it is to note that the certificate dated 25.7.1986 is not a piece of paper but a duly docketed document bearing file number. And if the Appellant Municipal Council had any doubt about the same, they could have produced the file, the reference whereof was reflected in the certificate, by not doing so and merely saying that the petitioner did not produce reliable document, will not substantiate a bald statement made in the grounds of Appeal that the certificate dated 25.7.1986 is "nothing but only an (sic
a) false and fabricated document produced by respondent and was produced before Audit to safe himself." These contentions 11 WA-812/2020 are not substantiated. It appears that to overreach the order of reinstatement with back-wages, the Appellant Municipal Council cooked up the story of forgery and fabrication of document. This act of the Appellant is unpardonable as the same is contrary to their own action by effecting recovery from said Shri Badri Prasad Garg, the then Accountant and also punishing him for his dereliction. Evidently, said Shri Garg did not question the recovery and punishment before any Court of law. No such material is commended to us.
15. From these facts, the plea of respondent/petitioner of being made a scapegoat by falsely implicating for the act which he did not commit, stands substantiated.
16. In view whereof, this Appeal deserves to be dismissed with costs for the reason that on an unsubstantiated allegation as to the certificate dated 25.7.1986 that it is a fabricated and forged document, raised for the first time in Appeal, an attempt is made by the Municipal Council to deprive the respondent of his rightful claim. Therefore, we quantify the cost at Rs.50,000/- (Rupees Fifty Thousand) to be deposited with the High Court Legal Services Committee to be utilized 12 WA-812/2020 for providing artificial limbs to poor and downtrodden, through Artificial Limbs Centre, Netaji Subhjash Chandra Bose, Medical College, Jabalpur.
(Sanjay Yadav) (B. K. Shrivastava)
JUDGE JUDGE
Loretta
Digitally signed by VINOD
VISHWAKARMA
Date: 2020.09.08 14:14:01
+05'30'