MOM RAJ Vs. DISTRICT AND SESSIONS JUDGE

JUDGEMENT

(1.) By this writ petition under Articles 226 and 227 of the Constitution of India, petitioner Mora Raj Thakur has challenged the punishment order of removal from service dated Jane 21, 1991 (Annexure P -7) passed by District and Sessions Judge, Mandi in disciplinary proceedings and also order dated 10th February, 1992 (Annexure P -9) rejecting his statutory appeal by the High Court, Similarly, order dated 18th February, 1992 (Annexure P -10) conveying the rejection of his appeal by the High Court is also impugned. He has also prayed for reinstatement with ail back -wages and other consequential benefits of service.

(2.) The petitioner was admittedly, appointed as Clerk on May 31, 1982 by the District and Sessions Judge, Mandi in the office of Sub -Judge -cum -Judicial Magistrate, Sundernagar He was promoted as Naib Nazir on 27 -5 -1985. On March 2} 1988 a charge memo was issued against him framing the following 10 charges: - "(i) That Shri Mom Raj while working as Naib Nazir in the Court of Sub -Judge Sundernagar ha& been absenting himself wilfully from duties with effect from 20 -6 -1987 continuously till date. (ii) That Shri Mom Raj while working, as such in the aforesaid Court has failed to band over the charge of the post he was holding - to his successor despite repeated directions issued by the Sub -Judge -cura Judicial Magistrate, 1st Class, Sundernagar vide his letter No. SJ/JM/SNR/87 -1132, dated 20 -74987, He did not even care to hand over the charge despite directions issued from the office of the District and Sessions Judge, Mandi Division at Mandi vide Memo No. DJ -R (Pcr)/3357, dated 21 -8 -1987. (iii) That Shri Mom Raj while working as such in the aforesaid court failed to hand over the keys of the Chest even despite directions issued to him which has created harassment for payment of Road and Diet Money to the witnesses on the date of hearings. (iv) That Shri Mom Raj while working as such, in the aforesaid court was supposed to hand over the complete charge of the post and cash with keys of the chest etc. on the date of proceedings on leave or immediately thereafter. But he failed to do so and on directions as contained vide letter No HHC/Admn. 2 (80)/87 -1900 dated 18th August, 1987 from the Registrar, High Court of Himachal Pradesh, Shimla, the chest was broken open and thus, caused unnecessary loss to the Government for breaking open the same (v) That Shri Mom Raj, while working as such in the aforesaid court, has failed to pay a sum of Rs, 137 on account of contingent charges which was drawn on 16 -5 -1987 till he proceeded on leave/absent i.e. 20 -6 -1987 which amounts to temporary embezzlement, (vi) On verification after breaking open the lock of the chest a sum ofRs 1460.45 p was found less according to General Cash Book and thus, he has embezzled the aforesaid amount and retained with him unauthorisedly. (vii) That Shri Mom Raj while working as such in the aforesaid court has failed to complete the register maintained by him viz. (i) General Cash Book, (ii) Sheriff Petty Account Register, (iii) Disbursement register, (iv) Cash Book of Sheriff Petty Account, (v) Telephone Register and (vii) Casual Leave Register. (viii) That Shri Mom Raj while working as such in the aforesaid court has failed to prepare the hills of Addl Dearness Allowance instalment of the Presiding Officer and the ministerial staff since 1 -1 -1987. (ix) That Shri Mom Raj while working as such, in the aforesaid court has failed to hand over the keys despite directions given to him by the Sub -Judge -cum -Judicial Magistrate, Sundernagar on 17 -6 -1987, while he was present in the office and thereby disobeyed the ofder of his superiors. (x) That Shri Mom Raj, aforesaid has failed to maintain devotion to duty and has conducted himself in such a manner which is unbecoming of a Government servant and due to this gross negligency in the discharge of his duties, as such, he has contravened the provisions of Rule 3 (I) (i), 3 (I) (ii) and 3 (I) (iii) of the Central Civil Services (Conduct) Rules, 1964, hence this charge sheet". 3 The petitioner submitted his explanation by filing a reply on 25 -3 -1988 (Annexure P -2). Thereafter Shri G. R. Sharma, Additional District and Sessions Judge, Mandi was appointed Inquiry Officer to conduct the inquiry. After taking evidence the Inquiry Officer found the petitioner remaining absent without any justification but held that the absence was not intentional and the charge was not proved. As regards not handing over the charge of his post to some other official the Inquiry Officer found the charge not proved The Inquiry Officer also did not believe the evidence of the Department about breaking open the lock of chest and consequently the shortage of cash therein. The sum and substance of the report (Annexure P -3) of the Inquiry Officer was that the alleged misconduct not being intentional, no misconduct can be said to have been proved against the petitioner. The Disciplinary Authority (District Judge, Mandi),who considered the said report differed with the inquiry Officer and held that charges 1, 2, 4 and 6 were duly proved. A copy of order dated 25 -6 -1990 (Annexure P -5) taking the different view of tie matter aloagwith a show cause notice dated 26 -6 -1990 (Annexure P -4) was served on the petitioner to which the petitioner submitted his reply dated 31 -7 -1990 (Annexure P 6). After considering the reply of the petitioner order dated 21st June, 1991 (Annexure P -7) awarding punishment of the removal of the petitioner from service was passed. The petitioner filed statutory appeal before the High Court which was decided by a learned Judge of this Court on the administrative side, The learned Judge considered the entire material on record and held that Disciplinary Authority was fully justified in not accepting the report of the Inquiry Officer and confirmed the penalty imposed upon the petitioner by the said Authority. The appeal was consequently dismissed. On these facts, the petitioner has filed this petition against the said order of removal.

(4.) Disciplinary Authority has filed written statement on the affidavit of Shri Surjit Singh District and Sessions Judge, Mandi to contend that the petitioner did not apply for leave on 17th 18th or 19th June, 1987 as alleged by him He resumed duty on 17 -6 -1987 after remaining absent from 18 -5 -1987 to 16 -6 -1987 and gave an application for leave only on 20 -6 -1987 and without waiting for the orders on his application being passed by the Sub -Judge, he left the office. It is denied that he handed over the keys of the Almirahs containing cash to Shri Atma Ram. It is stated that prescription slips/OPD were produced by the petitioner during the course of inquiry but there is no mention in any of the, documents that he was so sick that he required medical leave. The petitioner was an outdoor patient and he did not get himself treated in the hospital which fact would go to show that he was not suffering from any ailment. It is stated that as per documents his ailment was not so serious which prevented him from discharging his duties as Naib Nazir. It is further submitted that certain responsibilities are attached to the post of Naib Nazir in the Courts and if he remains absent without any prior information, it will adversely affect the smooth functioning of the courts as the petitioner has to deposit and disburse the expenses of witnesses, distribute the processes among the Bailiffs and the Process Servers. Therefore, a person who remains absent without prior information is not a fit person to be retained as Naib Nazir, otherwise, public and litigants will suffer. The sum and substance of the reply is that the action of the respondents removing the petitioner from service has been held justified.