This writ petition challenged a removal order for alleged misappropriation. The court quashed the punishment order due to lack of evidence, noting the petitioner had remitted funds and denied guilt, while the enquiry report was vague and unsupported.
Punishment order set aside; employment deemed to continue.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO
WRIT PETITION NO.13478 OF 2000
ORDER:
This writ petition is filed challenging the validity of the orders passed on 20.10.1997 by the second respondent, which order was confirmed by the third respondent on 11.05.1998 as illegal. The petitioner at the relevant point of time was working as Junior Field Supervisor. He was kept under suspension pending enquiry into allegations of misappropriation indulged in by him. On 20.05.1996, a charge sheet has been drawn by the Managing Director of the second respondent, which is an enterprise of the State of Andhra Pradesh. The sole charge laid against the petitioner reads as under:
“CHARGE
That Sri K. Sivaji, JFS Incharge of MARKFED retail depot Khammam has not remitted the sale proceeds to the extent of Rs.30,537-25. on the explanation called for by the Dist. Manager, Khammam, he has remitted Rs.15,500/- and the balance has not been remitted by him. He has misappropriated the sale proceeds.”
2. It is averred in the charge sheet that, upon verification of the records and reports, it was noticed that the sale proceeds to the tune of Rs.30,537.25/- lying with the petitioner were not remitted to the second respondent/Corporation’s account and hence the explanation of the writ petitioner was called for. It is further averred that the petitioner has remitted an amount of Rs.15,500/- thus still leaving a sum of
Rs.15,037.25/- unaccounted for. It is further stated that the petitioner has agreed to remit the said amount before the end of March 1996, but he has not remitted the same. Hence, it is alleged that the petitioner has misappropriated the sale proceeds and thus committed misconduct. It would be appropriate to notice that the charge sheet has recorded, as a fact that, the District Manager, Khammam, through letter dated 30.01.1996 called for the statement of sales, receipts and remittances of sale proceeds made by the petitioner and based upon this data, the charge was leveled against the petitioner.
3. The case of the petitioner is that, he has remitted an amount of Rs.15,500/- lying with him immediately and in the subsequent period, he has made further remittances of Rs.30,504.75/-. The data relating to which, the petitioner has furnished through his reply submitted to the Managing Director of the Corporation in pursuance of the show cause notice issued on 05.05.1997. It is specially adverted to by the petitioner that, he has sold fertilizers lying in bags which are found either cut or in torn condition on credit basis, to make good the value of the fertilizers supplied by the Corporation. He has pointed out that, though there was no credit policy put in place, but still, as per the oral instructions of the District Manager, Khammam, he sold the fertilizers stock with a view to retrieve its value. If the petitioner has remitted a sum of Rs.30,504.75/- between 08.03.1996 to 11.04.1996, the petitioner could not have been charged for embezzlement of the sale proceeds as alleged in the charge sheet drawn against him on 20.05.1996.
4. An Enquiry Officer has been appointed to conduct an enquiry into the matter. However, the Enquiry officer has submitted his report on 30.09.1996, after conducting an inquiry against the petitioner and
another employee. In the course of the said report, dealing with the case of the petitioner, it was recorded that, on 17.10.1995 there was a cash balance of Rs.33,522/- and current sales on that day was stated to be Rs.17,280/- and thus the total balance on that day was Rs.50,802/- whereas, the petitioner has remitted on 18.10.1995 and 19.10.1995 sums of Rs.17,700/- and Rs.16,000/- respectively. It is therefore averred that the petitioner has retained with him a sum of Rs.17,102/- without any reasons. Thereafter, the Enquiry Officer has proceeded to consider the statement made by the petitioner in his defence during the course of enquiry. It is stated that, after he has received a memo on 01.03.1996 from the District Manager, Khammam, the petitioner has remitted a sum of Rs.30,504.75/- on various dates between 08.03.1996 to 11.04.1996. The Enquiry Officer has also noticed that the District Manager made a statement that the petitioner has remitted the entire amount due from him. The Enquiry Officer thereafter proceeded that, both the charged employees have confessed before him about the misappropriation of the amount of the Corporation and hence in a generalized sweep of statement held the petitioner also guilty of the charge. It is noteworthy that the so called confessional statement has not been quoted.
5. To say the least there was much left to be desired in the matter. No one has been examined on behalf of the Corporation in support of the charge. Having found that a sum of Rs.30,537.25/- was lying with the petitioner, out of which Rs.15,500/- was paid, and thus the balance amount is stated to have been embezzled by the writ petitioner, it is rather unfortunate that the charge itself has not spelt out as to the amount of misappropriation indulged in by the petitioner. Since the charge has recorded, as a matter of fact, that the petitioner has remitted
a sum of Rs.15,500/-, I assume that the Corporation is proceeding against the petitioner for misappropriation of a sum of Rs.15,037.25/-, the balance amount, though it ought to have been specifically set out. When the petitioner has been consistently pleading that, he has remitted the entire amount of Rs.30,304.75/between 08.03.1996 to 11.04.1996, one cannot find any justifiable reason as to why the Enquiry Officer still held the petitioner guilty of the charge of misappropriation, inasmuch as Rs.30,304.75/- is higher than Rs.15,037.25/-. Nowhere this aspect of remittances made by the petitioner has been considered or dealt with by the Enquiry Officer or the Managing Director of the Corporation. If the petitioner has truly remitted the entire amount of Rs.30,504/-, he cannot be held guilty of the charge of misappropriation of Rs.15,037.25/-. Therefore, the Corporation should have verified it’s records properly, as to whether the claim of the petitioner is correct and tenable or not. Further, there should have been some material or the other that should have been laid in support of the charge. This failure acquires far more legal significance in view of the fact that the District Manager, Khammam, seems to have made a statement that the petitioner has remitted entire money to the Corporation and he is not due to pay any further amount to the Corporation. For sheer non-application of mind on proper lines by the Enquiry Officer as well as the Managing Director of the Corporation, the punishment order deserves to be set-aside.
6. On the last occasion, when the matter was heard, a learned Junior Counsel appeared on behalf of the respondent/Corporation. I confronted him as to how much money has actually been or alleged to have been misappropriated by the petitioner. The learned counsel has taken time till today to furnish an answer. But unfortunately, when the
matter is taken up for further hearing today, none bothered to appear for the respondents. I am therefore left with an impression that the respondent/Corporation is not serious to contest this writ petition.
7. A perusal of the order that is passed by the Managing Director of the Corporation on 20.10.1997, reveals that, in the first five paragraphs, the history of the case leading up to issuance of the show cause notice on 25.04.1997 proposing to impose the punishment of removal from service has been traced. In paragraph 6, the Managing director proceeded to record that the charged officer himself admitted during the enquiry about the misconduct committed by him and since there was no fresh evidence adduced, he found the writ petitioner guilt of misappropriation of the funds. Perhaps the employer need not have to strain to establish the charge against him, if the employee admits in no uncertain terms of his guilt. On the other hand, it is contended by the learned counsel for the petitioner before me that the writ petitioner has never admitted of any embezzlement of the funds of the corporation and on the other, he has stoutly disputed from the very beginning the allegation of misappropriation of the funds of the Corporation. Far from misappropriating, the petitioner has remitted the entire sum of Rs.30,504/- lying with him between 08.03.1996 to 11.04.1996. Hence, the burden lies on the Corporation to establish the guilt of the employee by producing relevant material.
8. I find considerable force in the submission made by the learned counsel for the petitioner. If the petitioner has admitted his guilt, the same should have been specifically brought out, instead of making vague references to it. During the course of enquiry, a defence statement is recorded from the petitioner, which does not contain any such admission of embezzlement or misappropriation of the funds of
the Corporation.
9. As I can make out, the Managing Director of the Corporation has proceeded on the premise that the petitioner has admitted his guilt, he has not applied his mind to the contention of the petitioner that he has remitted the entire money to the Corporation account by 11.04.1996 itself. For sheer failure to apply the mind on proper lines by the Managing Director of the Corporation and for sheer failure to bring any material in support of the charge before the Enquiry Officer as well as before this Hon’ble Court, I am convinced that the petitioner has been imposed with the punishment of removal from service without any supporting material or basis for the charge laid against him. For these reasons, the order passed on 20.10.1997 by the Managing Director of the Corporation is set-aside and a declaration will follow that the writ petitioner shall be deemed to have continued in service of the second respondent/Corporation.
10. The writ petition stands allowed. No costs.
________________________________ NOOTY RAMAMOHANA RAO, J 23rd August, 2012 sp
2 issues framed by the court
Whether the punishment of removal from service was sustainable without material evidence supporting the charge of misappropriation.
Whether the employer discharged its burden of proving the charge when the petitioner pleaded remittance of funds and denied guilt.
K. Sivaji
MARKFED/Corporation
Nooty Ramamohana Rao
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
