Bankey Lal Bhargawa vs State of Uttarakhand

Barin Ghosh, C.J.—On 7th July, 2008, a complaint was received where it was alleged that certain sum of money was entrusted with the petitioner for adding two rooms to the School, of which he was the then Principal. In the complaint, it was alleged that without constructing the said two rooms, the moneys released for that purpose were misappropriated by the petitioner. Taking note of the seriousness of the allegation, a preliminary inquiry was directed to be held by an order dated 9th July, 2008. While, however, directing such an inquiry to be initiated, the salary payable to the petitioner was directed to be stopped. The said decision to stop payment of salary to the petitioner was assailed in a writ petition, registered as Writ Petition No. 301 (S/B) 2008 and the said writ petition has been admitted and is awaiting for disposal. On the writ petition, an order was passed on 1st December, 2008 whereby the decision, not to pay salaries of the petitioner, was stayed. The preliminary inquiry, as appears from the order dated 20th August, 2011, has been completed, whereupon it has been, prima facie, opined that the petitioner has misappropriated a sum of Rs. 2,02,621/-. By the said order dated 20th August, 2011, petitioner has been asked to deposit the said sum of Rs. 2,02,621/- and in default it has been held out that disciplinary proceedings shall be initiated against the petitioner.

The service rules governing the conditions of service of the petitioner nowhere provide that on the allegation that the petitioner has misappropriated, salary otherwise payable to the petitioner can be withheld. At the same time, the conditions of service of the petitioner do not authorize withholding of salary of the petitioner even when, on the basis of a preliminary investigation, a prima facie opinion has been expressed by the employer that there is substance in the allegation that the petitioner has misappropriated moneys belonging to the employer.

In the event an employee has misappropriated moneys belonging to the employer, while the same is recoverable but the action of misappropriation is so grave a misconduct that the same may justify termination of the association of the employee with the employer for the loss of trust and faith in the employee. In the circumstances, question of asking the delinquent to refund the alleged misappropriated money and only in default, threatening to initiate disciplinary proceedings is not only unheard of but the said action is deprecated with whole heart.

Furthermore, liability of an employee towards the employer is to be adjudged. The claim of the employer, on the basis of finding reached by it, can not be said to be an adjudged claim. A non-adjudged claim is not, in law, enforceable. In order to adjudge the liability, recourse is to be taken to law applicable. One of the laws applicable in the instant case is adjudgement of the liability in course of the disciplinary proceedings. Until and unless, in the disciplinary proceedings, it is adjudged that the employee concerned is, thus, liable, the employer is not entitled, in law, to make a claim on the basis of an adjudged liability. Taking note of what has happened in the instant case, we set aside both the orders dated 9th July, 2008 and 20th August, 2011 but at the same time permit the employer to initiate appropriate proceedings against the petitioner and in the event in such proceedings it is adjudged that the petitioner is liable to the employer to the extent mentioned in the order dated 20th August, 2011 or to any other extent to take such steps as are permissible to recover the same. The proceedings to be initiated, it is made clear, may not remain confined only for the purpose of adjudging the liability of the petitioner, the same may be for any other matter.

Until such time such proceedings are concluded, it goes without saying that the employer shall not prevent the petitioner from drawing his salaries to which he is otherwise entitled in accordance with law.

This disposes of the writ petition.