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PETITIONER: ADDITIONAL DISTRICT MAGISTRATE(CITY) AGRA

       Vs.

RESPONDENT: PRABHAKAR CHATURVEDI & ANR.

DATE OF JUDGMENT:       08/01/1996

BENCH: SINGH N.P. (J) BENCH: SINGH N.P. (J) AHMADI A.M. (CJ) JEEVAN REDDY, B.P. (J)

CITATION:  1996 SCC  (1) 718        JT 1996 (1)   111  1996 SCALE  (1)142

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.B.. Majmudar. J.      Leave granted.      By consent  of learned  advocates of parties the appeal was finally heard and is being disposed of by this judgment. Respondent No.1  was an  employee of  the appellant.  He was alleged to  have misappropriated  an amount of Rs.21,094.80. The said  misconduct was  detected on 8th December 1984. The amount was  collected by him partly in March 1984 and partly in August 1984. The said amount was payable to Class III and IV employees  of the appellant on account of bonus and other allowances after  deduction from provident fund. This amount was required  to be  deposited in the Post Office Account of employees individually  by respondent  no.1 along  with  his associate and for that purpose he had taken this amount from the office  of appellant.  Instead of  depositing  the  said amount it  was kept  by respondent no.1 and on detection the amount was  tendered only  on 14th December 1984. Thus there was temporary  misappropriation of  this amount for a period of eight  months and less. Respondent No.1 and his associate have admitted  this fact in writing and deposited the amount on 15th  December 1984.  After a  departmental  enquiry  the respondent no.1  was dismissed from service on 29th November 1985.  Respondent   No.1’s  statutory   appeal  before   the appellate  authority   failed.  He   thereafter  filed  writ petition in  the High  Court of Judicature at Allahabad. His writ petition came to be allowed by the learned Single Judge on the  ground that  the authorities  had not given adequate opportunity to  respondent no.1  to defend  as  he  was  not permitted to examine witnesses nor was he supplied documents asked for  by  him.  Accordingly  the  dismissal  order  was quashed and  set aside  Appellant was  directed to reinstate respondent no.1  with full  back wages.  It is this order of the  High  Court  which  is  brought  in  challenge  by  the

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appellant.      The  learned   counsel  for  the  appellant  vehemently submitted that  when respondent no.1 had himself admitted in clearest terms  that he  had failed  to deposit  the  amount entrusted to  him and  that it  was due  to his  negligence, carelessness and  fault, nothing further survived and he was rightly dismissed  from service. So far as the non-supply of documents and  non-examination of  witnesses is concerned it was submitted  that respondent himself had stated before the enquiry officer  that he  had not to give any documentary or oral evidence.  There was no question of the enquiry getting vitiated on  account of  rejection of the subsequent request of the  respondent no.1  to examine  four witnesses. Learned counsel for  the respondent on the other hand submitted that the decision  rendered by the High Court was quite justified on the  facts of  the case and in addition he submitted that even the  copy of  the enquiry report should have been given to the respondent no.1 and as that was not done the order of dismissal had  got vitiated.  Learned counsel also filed his written  submissions   in  support  of  the  aforesaid  oral submissions.      Having considered the rival contentions and also having gone through  the written  submissions filed  on  behalf  of respondent no.1  we find  that the  order of  the High Court cannot  be  sustained.  So  far  as  non-supply  of  Enquiry Officer’s report is concerned it has to be kept in view that no such  contention was  raised in  the writ petition before the High  Court. The  High  Court  has  noted  this  aspect. Nothing could  be pointed  out to  us by learned counsel for respondent to controvert this observation of the High Court. Whether the pleadings in the writ petition should be treated as pleadings  in a  suit or not is not relevant for deciding this question.  Reliance placed in the written submission on R V.  Barnsley Metropolitan  Borough Council  1976  (3)  All England Law  Reports 452  also is  of no avail to respondent no.1.  The  said  decision  cannot  support  the  contention canvassed on  behalf of  the respondent  no.1 that  even  if there is  no grievance  made in  the writ  petition the High Court is bound to consider the said grievance. So far as the grievance about  the non-examination  of witnesses  and non- supply of  documents is  concerned, in  our view,  the  High Court has  erred in  ignoring the  salient features  of  the case, namely,  that respondent no.1 himself by his statement dated 14th December 1984 admitted to have received an amount of Rs.  21,000/- and odd and which could not be deposited by him  along   with  his   associate  on   account  of   their carelessness and  fault. It  is difficult  to appreciate how the said  statement could be said to have been brought about by any  coercion as  tried to  be  submitted  on  behalf  of respondent no.1. But even apart from that the order sheet of the Enquiry  Officer  clearly  shows  that  respondent  no.1 Prabhakar as  well as  Sajan Kumar  had submitted  that they have not  to give  any documentary or oral evidence and that is how  their evidence was closed. Under these circumstances the subsequent  request by  respondent no.1  to examine four more witnesses was rightly considered by the Enquiry Officer to be  an after  thought and  accordingly such  request  was rightly rejected.  In fact on account of the clear admission contained in  writing  given  by  respondent  no.1  on  14th December  1984  the  charge  against  him  stood  proved  on admission  and   the  only  question  that  remained  to  be considered was  about the nature of punishment to be imposed on him.  When respondent no.1 was guilty of misappropriation of such  a large amount of Rs.21,000/- and odd for couple of months it could not be said that the punishment of dismissal

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as imposed on him was in any way uncalled for or was grossly disproportionate to  the nature  of  the  misconduct  proved against respondent  no.1. For all these reasons the order of the High  Court  cannot  be  sustained  and  is,  therefore, quashed and  set aside.  The writ petition filed in the High Court will  stand  dismissed.  However,  in  the  facts  and circumstances of  the case  there will  be no  order  as  to costs.