JUDGMENT M. Katju and D. R. Chaudhary, JJ.
1. Heard learned counsel for the parties.
2. This writ petition was initially filed challenging the suspension order, charge-sheet and show cause notice against the petitioner but subsequently the dismissal order dated 21.4.88 has also been challenged.
3. The petitioner at the relevant time was posted as Secretary-cum-General Manager of Janta Bazar, Allahabad. He was a permanent employee of the Co-operative Department of the U. P. Government, and was formerly functioning as Addl. District Cooperative Officer from where he was sent on deputation to the aforesaid post.
4. It appears that certain misappropriation of the property of the society came to the knowledge of the petitioner when he was Secretary-curn-General Manager of Janta Bazar. Allahabad and hence he filed an F.I.R. against the miscreant, namely Rati Pal who was a Salesman in the society. True copy of the F.l.R. is annexed as Annexures-1 and 2 to the petition. It is alleged in paragraph 3 of the petition that Rati Pal has political affiliation and hence the lodging of the F.l.R. against him by the petitioner was not appreciated by some persons who were associated politically with Rati Pal. As such instead of doing investigation against Rati Pal. they got the petitioner suspended vide suspension order Annexure-3 to the petition and F.l.R. was lodged against the petitioner. Against that criminal case, petitioner filed an application under Section 482, Cr. P.C. which has been admitted in this Court as stated in paragraph 5 of the petition and the arrest of the petitioner has been stayed.
5. In paragraph 6 of the petition, it is alleged that thereafter a charge-sheet was issued to the petitioner, copy of which is Annexure-4 to the petition, to which he sent a reply vide Annexure-5 to the petition. A copy of the enquiry report is Annexure-6 to the petition. Thereafter a show cause notice was issued to the petitioner vide Annexure-7 to the petition. Thereafter the impugned dismissal order was passed. It is alleged in paragraphs 10 and 11 of the petition that no action has been taken against the real culprit, i.e., Rati Pal or his immediate boss Smt. Beena Singh. In paragraph 13 of the petition, it is stated that petitioner is not the Immediate boss of Rati Pal but the immediate boss is Smt. Beena Slngh. In paragraph 14 of the petition, it is alleged that the petitioner had no occasion to keep a watch on every movement of Rati Pal. As such the finding in the enquiry report that if the petitioner would have been careful, then the offence by Rati Pal could not have been committed is perverse and unwarranted by law.
6. In paragraph 19 of the petition. It is stated that in the enquiry report, there is no mention that the petitioner has committed any fraud or offence.
7. A counter-affidavit has been filed on behalf of the respondent Nos. 1 to 4. In paragraph 8 of the same, it is alleged that there was misappropriation and embezzlement of a large amount in the Cooperative Consumers Store at Allahabad where the petitioner was working as Secretary-cum-General Manager. The petitioner was given an opportunity of hearing in the enquiry and thereafter the impugned dismissal order was passed. In paragraph 12 of the counter-affidavit, it is stated that the petitioner being the Head of the institution is responsible for all losses caused to the society by any of the Salesmen.
8. In the rejoinder-affidavit, the allegations in the writ petition have been reiterated. In paragraph 5 of the same, it is stated that no action has as yet been taken against Rati Pal or Smt. Beena Singh and this itself shows the arbitrariness of the respondents. In paragraph 6 of the same, it is stated that in the enquiry no witnesses were produced and no opportunity to cross-examine was given to the petitioner at any stage. No date of evidence or enquiry was fixed. There was neither any charge nor any finding that the petitioner has embezzled or misappropriated any amount. It is further contended that the punishment is too severe.
9. We have carefully considered the submissions of the learned counsel for the parties.
10. The enquiry report. Annexure-6 to the petition shows that there is no finding that the petitioner misappropriated any amount or committed any fraud. The only finding at the end of the enquiry report is that the petitioner did not make proper inspection and he did not discharge his duties properly for which he is responsible.
11. From the facts disclosed in the enquiry report, it is evident that the real culprit was Rati Pal and not the petitioner. In fact when the petitioner came to know about the misappropriation and fraud committed by Rati Pal, the petitioner suspended him and stopped his salary. At most the fault of the petitioner can be said to be that he did not exercise proper supervision and control over his subordinates. In our opinion, the person in over all charge of an establishment has to take some measure of blame, if misappropriation is committed by some employee in his department, since after all he is the over all incharge and he should have exercised proper control of the affairs of the Cooperative Store. However, in our opinion, the punishment of dismissal is disproportionate to the misconduct. It is surprising that no action was taken against Rati Pal or Smt. Beena Singh but instead severe action has been taken against the petitioner.
12. On the facts and circumstances of the case, we are of the opinion that the punishment of dismissal awarded to the petitioner is too severe and disproportionate to the offence. Hence we set aside the dismissal order dated 21.4.88 and substitute it by the lesser punishment of depriving the petitioner half of his salary from the date of his termination to the date of reinstatement. The petitioner will be reinstated within a month from the date of production of a certified copy of this order before the authority concerned and shall be given seniority and continuity of service as if the dismissal order had not been passed. The petitioner shall also be given a warning that he should do his duties properly in future.
13. The petition Is allowed. No orders as to costs.