Court No. - 33
Case :- WRIT - A No. - 63996 of 2010 Petitioner :- Indra Pal Singh Rathi Respondent :- State Of U.P. And Another Counsel for Petitioner :- D. K. S. Rathor Counsel for Respondent :- C. S. C.
Hon'ble Manoj Misra,J. Hon'ble Ved Prakash Vaish,J.
We have heard Sri D.K.S. Rathor for the petitioner; the learned Standing counsel for the respondents; and have perused the record.
The petitioner at the relevant time was posted as an Executive Engineer and in-charge of certain road work. Funds allocated for the purpose was diverted to another head therefore he was served a charge-sheet. The petitioner submitted a reply and explaind the circumstances under which funds of one head was used in another. He also submitted proof that the fund was not embezzled but, in fact, was used in another head. The Enquiry Officer found that although there was no embezzlement of the funds but the funds available under one head was used in another without following financial procedure prescribed and, therefore, the petitioner was guilty of financial irregularity and diversion of fund from one head to another. Against the enquiry report, the petitioner submitted his explanation to the Disciplinary Authority explaining that there was no dishonest intention on the part of the petitioner. The Disciplinary Authority by order dated 4.4.2006, came to conclusion that the petitioner had committed financial irregularity by diverting fund from one head to another. It therefore considered appropriate to impose punishment of stoppage of two increments with permanent effect and to record censure entry.
Aggrieved by the order of the Disciplinary Authority, the petitioner filed a Claim Petition No.1152 of 2006 before the State Public Service Tribunal, Lucknow (in short the Tribunal).
The Tribunal, after giving opportunity to the petitioner as well as to the respondents, did not find it to be a fit case for interference as it was the accepted case of the petitioner that fund was diverted from one head to the other head although there was no case of embezzlement against the petitioner. The relevant observation of the Tribunal is contained in paragraph 3 of the order passed by the Tribunal where the own case of the petitioner has been discussed. The relevant portion is extracted below:
"The petitioner has himself accepted in his chart produced in the year 2002-03 the actual expenditure of Rs.40.36 Lacks against 60.47 lakhs and the use of remaining amount of Rs.20.11 lakhs for special renewal of roads under the Rajya Sarak Nidhi was used in the year 2002-03 and Rs.19.01 lakhs was allotted for renewal of 17.35 Km. road even then the work was not done but it was adjusted towards special repair work under the Rajya Sarak Nidhi, as such the petitioner after the allotment of fund for renewal of roads, he used the said budget in another head, which comes in the category of financial irregularity and Vyayavartan."
Learned counsel for the petitioner was given opportunity to explain the circumstances and the procedure under which funds could be transferred from one head to another head and whether those circumstances existed and whether the petitioner had recorded satisfaction about existence of those circumstances while diverting the funds from one head to another.
Learned counsel for the petitioner very fairly stated that there is nothing on record to indicate that the petitioner had recorded any such satisfaction that the circumstances existed for transferring funds from one head to another head. Although, he stated that the circumstances did exist. He, however, stated that explanation as regards existence of those circumstances was given but the same was not properly considered while imposing penalty.
We find that the penalty imposed upon the petitioner is not disproportionate to the charge found proved against him inasmuch as there is nothing on record or at least brought to our notice that the petitioner had recorded any satisfaction in writing as regards existence of circumstances for transfer of funds from one head to another or that, for such diversion, he followed the procedure prescribed. In matters relating to appropriation and expenditure, financial discipline is required to be maintained. If rules provide that the funds under one head can not be used under another head or can be used in another head after following a proper procedure then that procedure should be followed and the burden is on the incumbent to demonstrate that such procedure has been followed.
As, it has not been demonstrated before us that procedure was followed by the petitioner, the finding recorded that the petitioner had committed financial irregularity cannot be said to be perverse or without any basis. More over, it is not disputed by the petitioner that funds were diverted from one head to another head. Since the punishment imposed upon the petitioner is not that of removal or dismissal from service, we find that the punishment imposed is not so shockingly disproportionate that may invite judicial review. We find no illegality or perversity in the punishment order as well as the order passed by the Tribunal.
The petition is dismissed.
Order Date :- 26.7.2018 Vivek Kr.
(V.P. Vaish, J.) (Manoj Misra, J.)