(Prayer: This Writ Petition is filed under Articles 226 & 227 of Constitution Of India praying to issue writ , order or direction in the nature of certiorari to quash the order No.Karass /Keka/ Shistu / D1216 / 1363 / 2015-16 Dated 16.12.2015 issued by the 2nd Respondent as per Annexure-E and further to Quash The Order No.Karasa / Keka / Shistu / D- 1216 / 449 / 2016-17 Dated 30.05.2016 passed by the 1st respondent As Per Annexure-K and further sought for issue writ , order or direction in the nature of mandamus directing the 2nd respondent to give promotion to the petitioner to the next promotional cadre from the date of which it was due with all monetary benefits and etc.
This Writ Petition is filed under Articles 226 & 227 of Constitution Of India praying to issue writ , order or direction in the nature of certiorari to quash the order No.Karass /Keka/ Shistu / D1216 / 1363 / 2015-16 Dated 16.12.2015 issued by the 2nd Respondent as per Annexure-E and further to Quash The Order No.Karasa / Keka / Shistu / D- 1216 / 404 / 2016-17 Dated 26.05.2016 passed by the 1st respondent As Per Annexure-K and further sought for issue writ, order or direction in the nature of mandamus directing the 2nd respondent to give promotion to the petitioner to the next promotional cadre from the date of which it was due with all monetary benefits and etc.
This Writ Petition is filed under Articles 226 & 227 of Constitution Of India praying to issue writ , order or direction in the nature of certiorari to quash the order No.Karass /Keka/ Shistu / D1216 / 1363 / 2015-16 Dated 16.12.2015 issued by the 2nd Respondent as per Annexure-E and further to Quash The Order No.Karasa / Keka / Shistu / D- 1216 / 403 / 2016-17 Dated 26.05.2016 passed by the 1st respondent As Per Annexure-K and further sought for issue writ , order or direction in the nature of mandamus directing the 2nd respondent to give promotion to the petitioner to the next promotional cadre from the date of which it was due with all monetary benefits and etc..)
1. Heard the learne
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d counsel for the petitioners and the respondents in all the three writ petitions and perused the records.
2. The above said writ petitioners are filed by the petitioners challenging the orders passed by the 2nd respondent which is the Disciplinary Authority imposing penalty upon the petitioners holding that the petitioners have committed misconduct while discharging their duties under the 2nd respondent and also challenged the orders passed by the 1st respondent being the Appellate Authority confirming the orders of the Disciplinary Authority.
3. In detail it is seen that the petitioner in W.P.No.108174/2016, Smt.T.S.Patavegar was working as Assistant Accounts Officer under the 3rd respondent. It is alleged that while discharging her duty as such Assistant Accounts Officer, during the period from 13.03.2008 to 26.04.2010 she has committed dereliction of duty i.e., to say, though there were no postal UCP or RPAD receipts pertaining to the postal letters, with reference to the advance payment request made by the employees of respondent No.3 without looking into those receipts properly and also, in some cases on the basis of the Xerox copies of receipts without looking into the materials available on record but passed the payment order only on the basis of the fact that the Administrative Officer and Divisional Controller have certified the said documents and thereby made the payment to one Smt.S.S.Gunaki to the extent of Rs.5,97,650/-. The said amount was alleged to have been misappropriated by Smt.S.S.Gunaki. It is alleged that, though the petitioner had an opportunity to prevent such misappropriation by brining it to the notice of the higher authorities she has not done so. Therefore she has committed the misconduct as alleged.
4. So far as the petitioner in W.P.No.105868/ 2016 is concerned, the petitioner Sri Prakash Y.Karagudari was working as Accounts Officer under the 3rd respondent - institution and he also had the responsibility to check and verify all the UCP and RPAD receipts with reference to advance payment request. He also committed misconduct while discharging his duty as such Accounts Officer for the period between 26.04.2007 to 25.07.2008 and he also without verifying the receipts and also on the basis of some Xerox copies and even when such receipts and other documents did not have the signature of the Divisional Controller, inspite of that he has allowed the payment of an amount of Rs.3,38,830/- to Smt.S.S.Gunaki and allowed the said amount to be misappropriated by her. Similar allegations are made that, though he had an opportunity to examine all the above said defects in the receipts and the postal expenditure etc., not bringing it to the notice of the higher officers to prevent such misappropriation and thereby the petitioner has also committed misconduct as alleged against him.
5. So far as the petitioner in W.P.No.108485/ 2016 Smt.Jagadamba is concerned, it is alleged that she was also working as Assistant Accountants Officer under the 3rd respondent - institution and it is specifically alleged that while discharging her duty as such an Assistant Accounts Officer between 25.07.2008 to 30.09.2010, during that period she has also misconducted herself in not examining the UCP/RPAD receipts with reference to advance payment request and also not verifying the discharge documents and that she has also based on Xerox copies of the receipts which are not properly audited and also she acted upon the said receipts though they did not contain the signature of the Divisional Controller passed the said bills for payment to the extent of Rs.4,89,210/- and allowed for the misappropriation of the said amount through Smt.S.S.Gunaki and thereby she has also committed misconduct while discharging her duty.
6. On the basis of the above said allegations the 3rd respondent has ordered an enquiry and an Enquiry Officer was appointed by name one Sri P.B.Naduvinamani and the Enquiry Officer who is a Retired District Judge has conducted a detailed enquiry and gave the report stating that the allegations made against the above said petitioners are established. However, it is said that though they were not directly involved in such transaction but they are indirectly involved in the same and if they have taken due care and caution at right point of time they would have prevented the misappropriation of the said amount. By report dated 15.09.2014, the Enquiry Officer has concluded the enquiry a presented the report to the Disciplinary Authority.
7. The Disciplinary Authority after examining the allegations made against the petitioners and as well as the report submitted by the Enquiry Officer after applying its mind has come to the conclusion that though there is no direct involvement of the petitioners in the said misappropriation of the funds, but they had an opportunity to prevent the same. Considering the nature of allegations and as well as the gravity of the misconduct committed by the petitioners, the Disciplinary Authority has imposed the punishment withholding of one increment with cumulative effect so far as the above said petitioners are concerned vide different orders which are questioned before this court as narrated in the cause title of this writ petitions.
8. Being aggrieved by the said orders, the petitioners have also approached the Appellate Authority i.e., the 1st respondent in No.KaRaaSa: KeKa: Shistu: D- 1216:449: 2016-17 dated 30.05.2016 vide Annexure-K (In W.P.No.108174/2016), No.KaRaaSa: KeKa:Shistu:D- 1216: 404: 2016-17 dated 26.05.2016 vide Annexure-K (In W.P.No.105868/2016) and No.KaRaaSa:KeKa:Shistu: D-1216: 403: 2016-17 dated 26.05.2016 vide Annexure-H (In W.P.No.108485/2016). After reconsidering the entire materials on record, the Appellate Authority also came to the same conclusion that, the imposition of punishment or penalty by the Disciplinary Authority commensurate with the allegations proved against the petitioners. Therefore, the appeals were dismissed by the Appellate Authority. Being aggrieved by the above said two orders, the present writ petitions are filed.
9. The learned counsel for the petitioners in all the above said writ petitions has raised two important aspects before this court i.e., to say all the above said petitioners were working as Accounts Officers and Assistant Accountants Officers under the 3rd respondent. They have got some responsibilities, however the responsibility is more on the administrative officer and as well as the Divisional Controller who had also an opportunity to look into all the papers and thereafter they would issue certificate and send the records to the accounts branch for the purpose of payment. Therefore, after verifying the certificates of the Administrative Officer and the Divisional Controller, the petitioners have passed the bills and made the payment as per the directions of the Divisional Controller. Therefore, they have actually not committed any misconduct in making the payment.
10. Secondly, the learned counsel raised a point that similarly placed employee by name Latha who was also working as Assistant Accounts Officer she was also found to be guilty and misconduct to the extent of Rs.1,36,381/- wherein she allowed misappropriation of the said amount through one Smt.S.S.Gunaki and the same allegations are proved to the extent that, though she had an opportunity to prevent the said misappropriation by bringing the defects in the documents to the notice of the higher authorities. But she was imposed with punishment of only warning. Therefore, there is disparity in imposition of punishment amongst the persons who stand on the same footing.
11. The leaned counsel also raises a point that if it is seen from the Accounts Manual of the respondents - institution, it fixes absolutely no responsibility to the petitioners, as the advance payment has to be sanctioned by the competent authority and certified by the Administrative Officer and the Divisional Controller and thereafter the subject matter or the records would be sent to the accounts branch. If all the documents are signed by Administrative Officer and Divisional Controller, the accounts branch has nothing to say and they have to make the payment. Therefore, the Accounts Officers and Assistant Accounts Officers have very limited role to play and as such they have not done any misconduct. Therefore, they ought to have been exonerated by the Disciplinary Authority as well as the Appellate Authority. Therefore, the orders passed by both the authorities are illegal and the same are liable to be set aside.
12. Per contra, the leaned counsel for the respondents strenuously argued before this court that, the Accounts Manual and as well as the allegations are made against the petitioners show that, though there is no specific direct allegations against them, that they have misappropriated any amount, nevertheless their responsibilities are fixed by the Disciplinary Authority even in the Accounts Manual as well as the nature of the work they are doing under respondent No.3. Even the documents bear the signatures of the Administrative Officer or the Divisional Controller, it becomes the duty of the accounts section to once again cross check whether all the documents are in accordance with law and thereafter only they have to make the payment, otherwise if they find any mistake and if they had any opportunity to scrutinize the documents once again and if they find any mistake in any documents they can prevent misappropriation of the any amount by bringing into the notice of the higher officer. Such allegations are made against the petitioners, which have been on the basis of the report of the Enquiry Officer.
13. The learned counsel also argues that the nature of the punishment imposed is very meager and lenient view has already been taken by the Disciplinary Authority by imposing penalty of cutting of one increment with cumulative effect which cannot be at any stretch of imagination be said it is disproportionate to the proved misconduct of the petitioner. Therefore, they prayed for dismissal of the writ petition.
14. In the light of the above said arguments and also documents produced before this court at any stretch of imagination, it cannot be with all certainity said that, there was absolutely no responsibility on the petitioners when they are specifically admit that, they were working as Accounts Officer and Assistant Accounts Officer under the 3rd respondent - institution. Whenever advance payment requisition is made, how it should be processed is also very well defined in the Accounts Manual at Item No.201, it says that all payments are made after audit of the bill for the claim.
15. However, there are occasions necessitating payment of advance in cash i.e., for payment of registration fee of vehicle, Vakalathnama, petty purchasers payment of railways, fright etc., charges. But otherwise Mannual says that, certain procedure contemplated as to how the bills have to be moved and how it should come to the Accounts Section and how the payment has to be made, all these proceedings are specifically stated.
16. The learned counsel for the petitioners drawn my attention to the above said procedure, it is seen from Item No.201 (a) to (g) in the Accounts Manual, it makes it clear that, after making of the requisition for advance payment, the requisition shall be prepared by each department and shall bear the department's section's serial number. Advance can be drawn against the sanctioned expenditure only. The departmental head will verify the sanction of the competent authority to incur the expenditure and thereafter the advance has to be sanctioned by competent authority and it should be sent to the accounts branch for payments thereafter. Therefore, it clearly goes to show that the said procedure has to be strictly followed and each and every stage that should be scrutinized whether the said procedure has been followed up to the payment of the money. Therefore, it goes without saying that, each and every officer including the higher ups like the Administrative Officer and Divisional Controller and the person who actually makes the payment in the Accounts Branch have got some responsibilities cast upon them to examine whether these procedures as contemplated under Item No.201 is followed or not. The object behind that is to control the mis- appropriation of any amount of the institution and to avoid unnecessary complications in future. Therefore, it abundantly evident that, wherever the papers with regard to the advance request is made passes through any clerk or officer of any department they have got the responsibility to look into the same and find out whether there is any defect in those documents and whether those defects have to be brought to the knowledge of the higher ups or to the particular department which committed such mistake with a sole intention that before making any payment such defects, if any, can be corrected. Therefore, it goes without saying that the petitioners were also having such responsibility to look into the documents and the materials placed before them before making payment whether there are any defects in those materials.
17. With reference to the above, the allegations made against the petitioners particularly proved against them have got some relevance. The allegations as culled out above shows that, they have not examined the receipts and documents and in some circumstances for the above said period they have passed the payment even on the basis of Xerox copies of the receipts and even without the signature of the Administrative Officer or the Divisional Controller. These are all the defects which would have been corrected if these persons would have taken care to bring it to the notice of the higher ups that exactly the alleged misconduct committed by them. Though the said mis-conduct is remote in nature but the petitioners cannot say that they are totally absolved from any responsibility.
18. In this background, as could be seen from the enquiry report which is conducted by a Retired District Judge shows that a detail enquiry had been conducted on individual allegations made against the petitioners and others and what are the materials placed before the Enquiry Officer and how the Enquiry Officer has come to such conclusion. It is seen that in all the cases of the petitioners after verifying all the allegations the Enquiry Officer has with all certainties said that they are indirectly responsible for misappropriation.
19. Though the learned counsel for the petitioners submitted that in a routine manner even in the absence of signature of Divisional Controller some times the bills will be passed and payment will be made subject to ratification of the Divisional Controller, but such elasticity is not provided in the accounts manual itself. It may be a practice, but if such practice is continued the persons who are in the helm of affairs have to take the responsibility if anything goes wrong. On that ground the petitioners cannot claim that they should be exonerated. Even considering all these aspects the Disciplinary Authority has passed an order imposing penalty, as noted above, by cutting off of one increment with cumulative effect.
20. Now coming to the other grounds raised. It is argued that, a lady by name Latha, who was also working as Assistant Accounts Officer under respondent No.3, the allegations made against her was that during the period from 10.03.2006 to 19.07.2007 she has signed the certificates in the Tapal Registers with reference to the advance request. However, during the course of enquiry, it was found that said Smt. Latha was on leave on various occasions from 10.03.2006 to 19.07.2007. Therefore, the Enquiry Officer with all certainty came to the conclusion that she was not at all responsible in any manner with regard to the mis-appropriation by Smt. S. S. Gunaki. However, they having come to such conclusion, it is observed that she was on leave for a period of 311 days but she has worked for the remaining days. Therefore, there are chances of she also involving in such activities, but the Enquiry Officer was not sure so far as that aspect is concerned. It is only a suspicion expressed by the Enquiry Officer. Therefore, considering the above said report, the Disciplinary Authority considering the gravity of the mis-conduct alleged against the said lady imposed lesser punishment of censure against the said lady.
21. On perusal of the factual aspects of the case and considering the comparative misconduct alleged against the petitioners and as well as said Smt. Latha, I am of the opinion that there is slight difference between the allegations against the petitioners and said Smt. Latha and even the Enquiry Officers report differ with regard to the proof of allegations made against Smt. Latha and as well as the petitioners. Therefore, considering the nature of allegations and gravity of the mis-conduct committed by the petitioners and said Smt. Latha, the Disciplinary Authority has rightly imposed the punishment commensurate with the alleged misconduct of the petitioners and as well as Smt. Latha.
22. Be that as it may, the Enquiry Officer, The Disciplinary Authority and as well the Appellate Authority who are the fact finding machineries they have consistently came to the conclusion that the factual aspects alleged against the petitioners have been established on facts. Therefore, when these authorities have consistently came to the conclusion that, the established facts prove the misconduct of the petitioner, in my opinion this Court while exercising the powers under Article 226 of the Constitution of India should not normally interfere with the findings given by the Disciplinary Authority and as well as the Appellate Authority on facts, unless the Court finds that, there is total mis-carriage of justice or the punishment imposed by the Disciplinary Authority is so shocking and not commensurate with the misconduct alleged against the petitioner. Therefore, I am of the opinion that, such things are not available to this Court to interfere with the orders of the Disciplinary Authority or the Appellate Authority.
23. For the above said reasons, I am of the opinion that no sufficient grounds are made out to disturb the orders passed by the Disciplinary Authority as confirmed by the Appellate Authority. Hence, the following order :
Writ petitions are devoid of merits and the same are hereby dismissed.