E MUNI CHENGAL RAO Vs. TAHSILDAR MAMBALAM

JUDGEMENT

(1.) The petitioner, while he was working since 17/03/1958 as a Pharmacist in the Government Headquarters Hospital, Chittoor, on 16/11/1962, the District Medical Officer asked a staff nurse to give pathedrine injection to a pregnant lady, but the latter informed the former that no stock of pathedrine injections were available, necessitating the forms to make a surprise check of the stock and found that he petitioner had issued 100 ampules of pathedrine in sections to a lady doctor without any indent and orders by him. The petitioner was kept under suspension pending enquiry. The matter was entrusted to the police for investigation. The police laid a charge-sheet in C.C. No. 46 of 1963 for an offence under Section 409 I.P.C. in the Court of the First Class Magistrate, Chittoor, and was convicted under Section 409 I.P.C. for criminal breach of trust and misappropriation of the drugs costing Rs. 19,323.60 ps. On appeal in Criminal Appeal No. 151/63, Sessions Court acquitted him and, on further appeal, in C.A. 223/64, the High Court confirmed the acquittal. The petitioner was reinstated into service with effect form 24/05/1967. The Government, in G.O. Ms. No. 1164(H), dated 13/06/1967, directed to initiate disciplinary proceedings against the petitioner. In the meanwhile, a charge-memo., dated 27/04/1967, has been served imputing that as Pharmacist the petitioner was in charge of medical stores of the hospital and held the keys of the stores. He had to maintain all the accounts, relating to receipts and issue of medicines, as per the standing orders. He has to issue medicines from the stores on indents made by the concerned medical officers duly counter-signed by the District Medical Officer. He has to enter the same in the Daily Issue and Stock Register. He had issued to Dr. Satyavathi, Woman Assistant Surgeon, hundred ampules of pathedrine injections, without any requisition by the doctor or the authority or the countersignature of the District Medical Officer, who detected it on suspicion when he was informed of lack of injections in the hospital. Thereby, he violated the standing orders. It was also further imputed that he corrected the figures in the counter-foils of the indents and the entries in the Issue and Stock Registers to cover up the quantity of medicines misappropriated by him. He misappropriated drugs of the value stated therein; on 18/11/1962 when questioned by the District Medical Officer of those irregularities and shortages, he made an admission that he sold drugs worth Rs. 2,500.00 to M/s. Bhaiah Medical Stores and a statement to that effect was recorded on 19/11/1962, confirming his oral admission but subsequently resiled therefrom. The physical verification of the stock of medicines revealed that medicines worth Rs. 15,890-50 were unaccounted for; thereby he should have removed those medicines and utilised their sale proceeds for himself, thereby he caused loss to the Government. It was also further alleged that he concealed two wood boxes, containing medicines worth Rs. 645.00 in a lumber room of the stores with a view to stealthily remove them from the stores for unlawful gain. The petitioner had submitted his written statement on 13/05/1967. An enquiry officer was appointed, who held the enquiry. After giving reasonable opportunity to defend himself by the petitioner, he recorded the evidence and the enquiry officer submitted his report on 7/09/1967. He found four charges proved and recommended that the petitioner is not fit to hold the post of Pharmacist to discharge his duties reliably. Therefore, he recommended to discharge the petitioner from service and to write off the amount misappropriated. On consideration of the report, the second showcause notice was served on the petitioner, but the petitioner did not submit any explanation. Instead, he tendered his resignation, dated 19/09/1968, which was not accepted by the Director of Medical Services. The petitioner also filed O.S. No. 105/67 on the file of the Court of the Subordinate Judge, Anntapur, for recovery of arrears of salary which was decreed by judgment, dated 27/12/1971. By proceedings, dated 7/09/1968, the authority dismissed the petitioner with effect from the date of suspension. By letter, dated 3/05/1977, the Director of Medical and Health Services, Hyderabad, directed the petitioner to remit the sum of Rs. 19,323.60 to the Government account towards the loss of mis-appropriated drugs. By reply, dated 6/07/1977, the petitioner has submitted his reply. The District Collector, Chittoor, by letter, dated 14/12/1979, authorised the Tahsildar under Section 3(1) of the Revenue Recovery Act to take action for the realisation of the loss. By letter, dated 1 8/01/1980, the District Collector, Guntur, authorised the Tahsildar, Guntur to realise the amount under the Revenue Recovery Act. Similarly, the District Collector, Madras, was also requested to recover the amount under the Revenue Recovery Act who, in turn, authorised the Tahsildar, Mambalam, Madras-17, to recover the amount from the petitioner. By notice No. 05/38184/80, the Tahsildar, Mambalam, Guindy, directed the petitioner to pay Rs. 19,323-60 ps. to the Superintendent, Government Head-quarters Hospital, Chittoor, within seven days, failing which the amount would be recovered under the Revenue Recovery Act. Assailing the legality of this notice, the petitioner filed the writ petition.

(2.) Before dealing with the contentions on merits, to conclude the narrative facts, it is necessary to emphasise that, from the record, it is clear that before orders of dismissal are passed by the competent authority, the petitioner resigned voluntarily and left the service without being duly relieved of his duties. It is not clear from the record whether the order of dismissal has been served on the petitioner. Therefore, the petitioner had no occasion to assail the legality of the order of dismissal of the petitioner from service. It is seen that the enquiry officer found all the charges against the petitioner proved. That was accepted by the disciplinary authority. The second showcause notice reiterates the same. The value of the medicines, of which loss was caused to the Government, was recommended to be written off, but was not accepted by the competent authority.

(3.) The contention of Sri P. L. N. Sarma, the learned counsel for the petitioner, is that the charge in C.C. No. 46/63 under Section 409 of I.P.C. that the petitioner had misappropriated medicines was found not established on merits by the Sessions Court on appeal and was affirmed by the High Court. Therefore, it is an honourable acquittal of the charge. Same set of facts and the evidence of the same witnesses examined before the Enquiry Officer cannot be relied on for dismissal of the petitioner from service and fastening him of the liability for the recovery of the amount. In support thereof, he placed strong reliance on R. P. Kapur v. Union of India (1966-II-LLJ-164), Shaik Kasim v. Superintendent of Post Offices, (1965-I-LLJ-197), A. P. Naidu v. S.C. Railway (1983-I-LLJ-151) and R. J. Divekar v. Union of India 1985(1) SLR. 214. The attempt of Sri Sarma is to avoid the liability. The disciplinary authority recommended to write off the amount misappropriated. It was not indicated in the second show-cause notice that they did not accept the recommendation. Therefore, the Government has no power to recover the amount. Even otherwise, before quantifying. The petitioner had no opportunity to have a say in the matter. Therefore, the notice for payment is without authority of law. These contentions have been refuted by the Government Pleader.