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Judgment
Vinod K. Sharma, J.—The Petitioner has invoked the jurisdiction of this Court, under Article 226 of the Constitution of India, with a prayer
for issuance of a writ, in the nature of certiorari, for quashing the order, dated 31.08.2004 passed by the competent authority and the order, dated
29.07.2003 passed by the appellate authority, ordering dismissal from service, with all consequential benefits.
The Petitioner was working as ''Junior Assistant'' in the District Police Office, Sivagangai. On 06.06.2003, a sum of Rs. 1,50,000/- [Rupees
one lakh and Fifty thousand only] was found missing from the cash box fitted in the District Police Office. The responsibility for the missing amount
was fixed on the Personal Assistant attached to the Superintendent of Cash section. Even though, the allegation of missing amount was fixed on the
Personal Assistant to the Superintendent of Cash section, a criminal case was registered against the Petitioner, u/s 408 IPC, at Sivagangai Town
Police station.
Thereafter, on 11.06.2003, another criminal case was registered against the Petitioner u/s 380 IPC on the allegation that the Petitioner had
stolen cheque memo and counter foils.
The Petitioner was also issued charge memo. The charges against the Petitioner read as under:
Reprehensible conduct by committing theft of office records(Cash memo books and counter foils) from the cash section at District Police Office,
Sivagangai on 05.6.2003 evening and removed them to his residence.
Involved himself in a criminal case in Sivagangai Town PS Cr. No. 267/2003, u/s 380 IPC and detained under Judicial Custody for more than
48 hours from 11.06.2003.
As regard the second charge is concerned, there is no necessity to discuss it, as admittedly, the Petitioner has been Honourably acquitted by the
criminal court, in a case registered against the Petitioner u/s 380 IPC.
The evidence led in proof of the other charge, by the employer was only the evidence collected by the police in the criminal case.
On account of acquittal of the Petitioner, the evidence has lost its value, to hold the Petitioner guilty of the second charge.
As regard on the 1st charge, the evidence led was the recovery memo by the police, after registration of the case. This recovery memo was not
believed by the criminal court.
However, the Petitioner''s acquittal of the criminal charges by the criminal court, cannot itself be a ground to hold that the finding of the enquiry
officer or the competent authority was bad, as in a criminal case, the charge has to be proved beyond reasonable doubt, whereas in the
departmental proceedings, probabilities can also be seen. Therefore, it will be necessary to see, that whether pending by enquiry officer can be
relied on to uphold the impugned order.
In this case, the finding of the enquiry officer is perverse. Even on probabilities, the Petitioner can not be held guilty, as there was no charge,
Petitioner taking away amount as is sought to be projected in the counter filed in the reply to the writ petition filed by the Petitioner. The charge of
embezzlement was on PA of SP (Cash Section), who has deposited the amount with department and no action has been taken against him.
The charge against the Petitioner was only with regard to taking away of cheque memo book and cheque memo acknowledgment.
The Petitioner placed before this Court, the document showing the cheque memo book and cheque memo acknowledgment, were taken by
the Petitioner with a permission of the competent authority, for the pasting work.
The translated version of application moved by the Petitioner and orders passed thereon read as under:
From,
M. Sudaliyandi,
Junior Assistant,
District Police Office,
Sivagangai District.
To,
Superintendent of Police,
Sivagangai.
Sir,
Sub: Permission ,cheque Memo book and cheque memo acknowledgment - to take home for pasting and bring back - reg.
I am working in B2 Seat, In my seat the cheque memo has not been audited for several days. In this seat, there is enough time only to do normal
office work. Hence auditing of cheque memos could not be done. Further I have made application seeking Transfer to Tirunelveli and there is a
possibility for transfer soon. Therefore I request you to permit me to take cheque memo book and connected acknowledgment to my house for
doing pasting work and bring back the same to office for auditing work.
Yours truly,
sd/- 15.10.2002
(M. Sudalaiyandi)
On this, an order was passed by the Superior Officer, permitting the Petitioner to take necessary documents found and the receipts showing
that those were received by were also recorded .
The notes on the application moved by the petition is as under:
As per Order of PA(Accounts) I am taking the following cheque memo book and also cheque memo acknowledgment for pasting to him.
1.CM/301 to 400/01/02 76
2.CM/701 to 800/01-02 51
To Superintendent
Sri,
For your perusal
Sd/ sd/25/2 21/1/03
To. P.A.
Sir,
As per your order J.A., M. Sudaliyandi, had taken the aforesaid cheque book and to be posted cheque Memo acknowledgment to his house and
brought it back same to office today and placed it to me for verification. I have verified and found every thing in it order.
sd/-06.1.
PA(Accounts)
SIVAGANGAI
The first charge against Petitioner was false on the face of it. The finding recorded by the enquiry officer, therefore, is based on inadmissible
evidence.
It is well settled that this Court cannot substitute its opinion for the finding recorded, on appreciation of evidence by the enquiry officer, but
when the finding is totally perverse and it based on no evidence then this Court exercising the writ jurisdiction can set aside the finding, by holding it
to be perverse and not sustainable in law.
As already observed above, there is absolutely no material on record to hold the Petitioner guilty, nor there was any motive or advantage to
the Petitioner for taking away the cheque memo and cheque counter foils. The finding of the enquiry officer on the face of it, being perverse, cannot
be sustainable in law.
Consequently, the order of dismissal of the Petitioner as also of the appellate authority, cannot be sustained in law.
Consequently, the writ petition is allowed, the impugned order is set aside, and the Petitioner is entitled to reinstatement in service, with all
consequential benefits. No costs.