Rajasthan High Court - Jodhpur
Mahaveer Prasad Sharma vs State & Anr on 9 March, 2009
Author: Govind Mathur
Bench: Govind Mathur
SBCWP No.1527/98 - LRs of Mahavir Prasad v.
State of Rajasthan & others
Date of Order: 09.03.2009
1 of 6
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
:::
ORDER
:::
L.Rs. of Mahavir Prasad v. State of Rajasthan & another
S.B. CIVIL WRIT PETITION NO.1527 OF 1998
:::
Date of Order: 09th March, 2009
:::
PRESENT
HON'BLE MR JUSTICE GOVIND MATHUR
Mr R.N. Upadhayaya, for the petitioner
Mr B.S. Bhati, Government counsel
BY THE COURT:
By a memorandum dated 40th December, 1995, the petitioner- an Accountant, was subjected to disciplinary proceedings along with 04 other co-delinquent employees as per provisions of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 {herein after 'the Rules of 1958'}. The petitioner was charged for making payment regarding fodder SBCWP No.1527/98 - LRs of Mahavir Prasad v.
State of Rajasthan & others Date of Order: 09.03.2009 2 of 6 without verification of bills while working as Accountant in the office of Deputy Conservator of Forests, Jaisalmer, for making payment of fodder without having any budgetary provision, misappropriation of government funds in the year 1987 while working as Accountant in the office of Deputy Conservator of Forests, Jaisalmer, by connivance with other co-delinquent employees by preparing forged muster-rolls, for a misappropriation of government funds in tune of Rs.33803/- through forged muster rolls regarding carriage of fodder.
After regular inquiry, the Inquiry Officer held the petitioner guilty for all the four charges. However, the Disciplinary Authority exonerated the petitioner from charges No.1 and 2 and found him guilty for charges regarding misappropriation of sum of Rs.36616/- and for sum of Rs.33803/-, as that amount was paid to the persons concerned without having budgetary provisions. Accordingly, a penalty of withholding of three grade increments with cumulative effect was imposed upon the petitioner under an order dated 31st January, 1998. By a corrigendum dated 01st July, 1998, the Disciplinary Authority inserted following discussion in his earlier order dated 31st January, 1998:
SBCWP No.1527/98 - LRs of Mahavir Prasad v.
State of Rajasthan & others Date of Order: 09.03.2009
3 of 6 "यधप इनक मस र र ल बन न म क ई य गद न नह रह ह फ र भ बबन बज प वध न क इनह मस र र ल क मन नह करन च हहयI पवप%य अननयममतत बरतन क क रण इनह फकस भ ररसस.नत म उचच अधधक र क गलत ननण2य3 क4 लन नह करन च हहय . I अत: श मह व र पस द लख क र इस हत7 द ष य ज त ह9 I"
Aggrieved by the order passed by the Disciplinary Authority, this petition for writ is preferred.
The petitioner was charged for misappropriation of government funds on the count that he in connivance of his superiors and subordinates misappropriated sum of Rs.36616/- to make payment of wages to labourers by making forged muster rolls and also that he misappropriated sum of Rs.33803/- on the basis of forged rolls regarding carriage of fodder. However, the Disciplinary Authority after considering whatever material available on record reached at a conclusion that the petitioner was having no role in preparing muster rolls but he should have not verified payment bills even if instructions were given by the superior authorities.
As per learned counsel for the petitioner, there was no allegation against petitioner about commission of any financial irregularity by making payment without having budgetary provisions and as such, no guilty could have been recorded SBCWP No.1527/98 - LRs of Mahavir Prasad v.
State of Rajasthan & others Date of Order: 09.03.2009
4 of 6 against him for an act which was not part of charges and hence, the penalty imposed is erroneous.
While meeting with the arguments advanced by learned counsel for the petitioner, it is contended by learned counsel for the respondents that the Disciplinary Authority though exonerated the petitioner from charges No.1 & 2, however, while relying upon the statement given by Kumbh Singh and two other persons (PW15 and PW16), gave a specific finding that the petitioner was aware of the fact that the muster rolls were not proper and therefore, in any event he should have noted raised objection for such payment. By not doing so, he participated in a financial irregularity that came into occurrence because of forged muster rolls.
Having considered the arguments advanced and examining the record available, it appears that the petitioner while holding the post of Accountant in the office of Deputy Conservator of Forests, Jaisalmer accorded sanction for making payment for cutting of fodder and for carriage of the same. The payment so made was based on the muster rolls, those were not prepared by the petitioner. The petitioner has been found guilty for an allegation that he should have objected for making payment SBCWP No.1527/98 - LRs of Mahavir Prasad v.
State of Rajasthan & others Date of Order: 09.03.2009 5 of 6 relating to muster rolls those were forged one and also and also that no payment could have been made without having adequate budgetary provision.
From the perusal of charge sheet, it is apparent that, as a matter of fact, there was no charge against petitioner that he made payment relating to cutting of fodder or carriage of fodder without having budgetary provision or on the count that he should have objected for making payment on the basis of forged muster rolls. As a matter of fact, there is no discussion even in the order impugned that the petitioner was having any knowledge about forged muster rolls.
Be that as it may, it is not in dispute that the petitioner is found guilty for a charge that was never levelled against him and the Disciplinary Authority was aware of it, therefore, while passing the order impugned also in quite unambiguous terms stated that no allegation in this regard was part of the charge concerned. It is well settled that an employee can be penalized for an allegation that is part of the charge framed against him or for an act apparently incidental thereto. In the present case, no allegation against the petitioner was there that he neglected his duties and that resulted in misappropriation of government SBCWP No.1527/98 - LRs of Mahavir Prasad v.
State of Rajasthan & others Date of Order: 09.03.2009 6 of 6 funds. As a matter of fact, the petitioner was having no opportunity to defend himself for the allegation that is found proved against him, as such violation of principles of natural justice is on face of the case in hand.
In view of whatever discussed above, I am of the opinion that the penalty inflicted upon the petitioner by holding him guilty for allegations No.3 and 4 is not sustainable.
Accordingly, this petition for writ deserves acceptance, therefore, same is allowed. The order impugned dated 31st January, 1998 read with corrigendum dated 01st July, 1998 passed by the Deputy Secretary, Government of Rajasthan, Department of Personnel (Group-III) stands quashed to the extent it relates to imposition of penalty of withholding of three grade increments with cumulative effect upon petitioner. The petitioner shall be entitled to all other benefits flowing as a consequence to quashing of the order impugned dated 31st January, 1998.
No order as to costs.
[GOVIND MATHUR],J.
mma