Dharampal Singh vs Haryana State and Others

Ranjit Singh, J.—Through this order, two Regular Second Appeal Nos. 2436 and 2141 of 2008 (Dharampal Singh v. Haryana State and Ors.) are being disposed of together. Both these appeals have been filed by the same appellant to challenge the different orders of dismissal passed against him for separate misconduct alleged against the appellant.

The order under challenge in R.S.A. No. 2436 of 2008, is dated 4.8.2007 passed by Additional District Judge, Hisar. The appellant had filed a suit seeking declaration to the effect that order of dismissal dated 6.6.1992 and upheld by the High Court on the administrative side while deciding the departmental appeal conveyed through memo dated 16.3.1994 were illegal, null and void and against the principles of natural justice etc.

The appellant was initially appointed as Daftri in the office of District and Sessions Judge, Hisar on 9.1.1976. He was promoted as Clerk on 1.3.1978. While working as a Reader in the Court of Ms. Anup Yadav, Sub Judge, Hisar, he had realised a sum of Rs. 860/- as fine but did not deposit the same in time statedly due to rush of work. Though no complaint was made by the Court, yet District and Sessions Judge charge sheeted the appellant for temporary embezzlement of the amount, which had remained with the appellant for a period of 3 to 5 months.

While filing reply to the charge sheet, the appellant pleaded that he could not deposit the amount inadvertently due to rush of work and denied the allegation of misappropriation or embezzlement. Thereafter, the District and Sessions Judge dismissed the appellant on 6.6.1992 without holding any enquiry. The appeal filed by the appellant was rejected on 19.2.1994 and accordingly the appellant filed the suit, challenging the order of dismissal on various grounds.

In reply filed, the respondent pointed out that the plaintiff had received a sum of Rs. 860/- imposed by Court as fine on different dates but did not deposit the same even upto 3 to 5 months. On learning that the disciplinary authority had detected the misappropriation, the appellant deposited the amount on 15.10.1990 and 10.12.1990. As per the averments in the reply, the appellant was rightly charge sheeted and had admitted his guilt for misappropriation. Accordingly, no further enquiry was required to be held and he was rightly dismissed on 6.6.1992.

On the basis of the pleadings, the following issues were framed:

Whether the order dated 6.6.92 passed by the defendant No. 3 and order dated 16.3.94 passed by the defendant No. 2 are illegal, null and void? OPP

Whether the plaintiff is entitled to all the benefits etc., if issue No.1 is decided in his favour? OPP

Whether the suit is not maintainable? OPD

Whether the suit is barred by construction resjudicata? OPD

Whether the suit is time barred? OPD

Whether the plaintiff has no locus-standi to file the present suit? OPD

Relief.

The Trial Court dismissed the suit on 15.12.2003, against which the appellant filed an appeal, which was dismissed on 4.8.2007. The appellant has accordingly filed the present Regular Second Appeal.

Concededly, the appellant was dismissed from service after being charge sheeted without holding any enquiry. Justification to dismiss the appellant in this manner is on the ground that the appellant had pleaded guilty to the charge and hence, there was no need to hold the enquiry. The order of dismissal was, thus, sought to be justified accordingly. Even in the impugned order, it is noticed that the enquiry was dispensed with since the appellant had admitted his guilt. A perusal of the record would show that the appellant had stated in reply to the charge sheet that he could not deposit the amount ''due to oversight and rush of work''. The record was accordingly summoned to peruse his reply to the charge sheet to see if this could be taken as a admission/confession, for which the enquiry against him could be dispensed with. If the statement made by the appellant could be taken as an admission or confession, then the respondents were justified in passing the impugned order without holding enquiry. The record was received and has been perused. The exact response to the allegation made in the charge sheet as given by the appellant is as under:

That the amount of fine mentioned at Sr. Nos. 2 to 7 of the charge sheet could not be deposited by me due to oversight and because of rush of work. As soon as this fact was brought to my notice by my learned Presiding Officer, Ms. Anup Yadav, JMIC, Hisar, I deposited the same without delay. There was no bad intention of mine to embezzle the amounts of fine. During my tenure as Reader, heavy amounts of fine were realized which stand deposited with the Treasury in time. This fact can be verified from the fine register itself....

It is, thus, to be seen if the above statement would amount to admission/confession or not.

The word ''admission'' has been defined in Section 17 of the Indian Evidence Act. An admission is a statement oral or documentary or contained in electronic form, which suggest any inference as to any fact in issue or relevant fact and which is made by any person and under the circumstances mentioned in various Section of the Indian Evidence Act. Confession though not defined but is by now well understood. A statement in order to amount to a confession must either admit in terms of offence alleged or at any rate substantially all the facts which constitute offence alleged. The enquiry could be dispensed with, when a delinquent employee admits the charge levelled against him as nothing is left to be enquired. The statement as reproduced above would not suggest any inference that the appellant was pleading or admitting his guilt for embezzlement. The appellant had in no uncertain terms pleaded that he could not deposit this amount due to oversight and on account of rush of work, which can not mean that he was admitting either embezzlement or misappropriation. In fact, the appellant was making a statement, which was exculpatory in nature. The statement read in entirety can not be taken as an admission or confession, as a clear attempt was made to explain the allegation in the charge sheet. This statement was wrongly construed as admission on the part of the appellant to dispense with the enquiry. The enquiry could have been dispensed with in case the admission was clear and categorical. The procedure, as required under Punishment and Appeal Rules, thus, stood violated and the impugned order passed may not be sustainable.

As a natural consequence of the above discussion, this order of dismissal was required to be set-aside and case remitted back to the Punishing Authority for proceeding with the same for holding enquiry and passing a fresh order on the basis of evidence and finding. Ordinarily, that was the only legal and proper mode but, however, I am not adopting the same because in a separate order, the appellant had also been dismissed, which is under challenge in Regular Second Appeal No.2141 of 2008.

The facts in this case, noticed in brief, are that the personal suit filed by the appellant where he was cited as a plaintiff against his real Uncle was dealt by the same Court, where the appellant was working as a Reader. A civil suit titled Dharampal v. Bhagat Singh was assigned to the Court of Ms. Anup Yadav. The appellant was the plaintiff in this case. It was alleged that the appellant added words in the order by inserting family settlement in the Judgment dated 29.3.1990, for which he was charge sheeted. The Enquiry Officer was appointed, who gave his report on 28.11.1990. Out of the four charges, three were held proved against the appellant. It was revealed that plaintiff had written the order dated 19.2.1990, 16.3.1990 and 29.3.1990 in the aforesaid civil suit. He had also recorded his own statement and that of his Uncle Bhagat Singh who was the defendant, without the permission of the trial Judge. He had then tempered with the judgment dated 29.3.1990. For these proved allegations, the appellant was dismissed by the District and Sessions Judge on the same date i.e. 6.6.1992. Against this order, the appellant had filed a departmental appeal before the High Court on administrative side, which was also dismissed and conveyed to him on 12.5.1993. He had accordingly challenged these orders by filing a civil suit.

Respondents, however, resisted the civil suit. It was pointed out that words "by way of family settlement" in judgment dated 29.3.1990 were unauthorized inserted by the appellant himself after the signing of the judgment by the Presiding Officer. In fact, the appellant himself had performed the entire role in the civil suit and subsequently tempered with the judgment. He had also not brought to the notice of the Court that appellant himself was the plaintiff in the suit, which was dealt with by the Court. The suit filed by the appellant to challenge his dismissal was dismissed and appeal against the same has also been rejected.

No argument of substance could be raised on behalf of the appellant before me in this Regular Second Appeal. In fact, the counsel for the appellant would only submit that it would not be believable that the Trial Court was not aware that the civil suit was that of the Reader (appellant) of the Court. He has made reference to the evidence given by the Trial Judge, where it was specifically stated by the Trial Judge that he was not aware that the case was that of the appellant. This act on the part of the appellant to deal with his own case by recording his own evidence and that of the defendant and then tempering with the judgment after it was signed would certainly be a gravest act of misconduct by an employee who was employee in the Court of law. A Reader of Court is an important functionary, who has to assist the Court and can be expected to apprise the Trial Judge if any of his personal case was put up for trial before the same Court. The appellant fell short of expectation. Rather he did all this with motive and purpose. This could not be expected from the appellant. He not only failed in his bounden and pious duties in this regard but misled the Trial Judge as well and tempered with the judicial record. There can not be any justification to ignore this serious misconduct on the part of the appellant.

The plea of mercy pressed into service by the counsel co-relating the same with the fact that the appellant had only three daughters would be of no consequences in the light of the nature of allegations made against him. The appellant was bound to know the consequence of his misconduct, he being mature employee who had rendered sufficient years of service, when he committed this misconduct.

There is no question of law, which arise for adjudication in this case and the appeal accordingly is dismissed.

Since the order of dismissal of the appellant is being upheld, it would be futile to remand the case in RSA No. 2436 of 2008 for holding an enquiry in regard the misconduct, which was subject matter of challenge in the said Regular Second Appeal.

Both the Regular Second Appeals are accordingly dismissed.