# Rama Shanker Shukla v. Nagar Mahapalika Allahabad and another

- **Citation:** (2004) 2 ILRA 568
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-08-13
- **Case number:** Writ Petition No.5728 of 1996
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rama-shanker-shukla-v-nagar-mahapalika-allahabad-and-another-40253
- **Pages:** 6

## Headnote

Indian Penal Code, 1890-Ss. 493, 24, 25-
Service
Law-Termination
orderPetitioners a Tax Collector, had clear
intention
to
misappropriate-huge
amount collected by him as tax-retention
of amount for considerable period and
utilization of money for personal gainDeposit of amount only after suspension,
does not absolve petitioner from his guilt
misappropriating
the
amount-No
explanation for not depositing amount.
Thus
intention
to
misappropriate
amount-established charges-No ground
for interfere with punishment awarded
by disciplinary Authority.

Held: Para 6 and 14

In the present case, the petitioner
collected a sum of Rs.1,48,000.00 and
odd and did not deposit the money in the
Treasury for a long time. The petitioner
retained and used this amount for his
own personal gain. Subsequently, on the
basis of a preliminary enquiry, it was
found that the petitioner had retained a
large sum of money on the basis of
which the petitioner was suspended and
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2 All] Rama Shanker Shukla V. Nagar Mahapalika, Allahabad and another
569
it
was
only,
thereafter,
that
the
petitioner had deposited the amount. If
the respondents had not found out about
the shortfall, in that event, the petitioner
would have retained the amount. The
deposit of the amount was made after a
considerable period of time and no
explanation had been given by the
petitioner as to why he could not deposit
the money earlier. Therefore, in my view
the petitioner was guilty of dishonest
misappropriation.

As I have already held, the petitioner
had a clear intention to misappropriate
the amount, and the petitioner had
retained the amount for a considerable
period of time and utilized the money for
his own gain benefit. The fact that the
petitioner deposited the amount only
after he was suspended does not absolve
the petitioner of his initial guilt of
misappropriating the amount. Further,
no explanation had been given by the
petitioner as to why he could not deposit
the money earlier. In the absence of any
explanation, it is clear that the intention
of the petitioner was to misappropriate
the amount. Thus such a person who was
posted as a Tax Collector, which is a post
of trust, could not retained in service.
Case law discussed:
1997 ALJ 1310
2000 (18) LCD 1040
AIR 1959 SC 1390
2001 (2) UPLBEC 1475
2000 (1) UPLBEC 541

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
568
of the High Court of entertaining writ
petitions against a show cause notice.

The Writ Petition is premature and is
dismissed at this stage.
Case law discussed:
2004 AIR SCW 416

(Delivered by Hon'ble M. Katju, J.)

1. Heard learned counsel for the
petitioner.

2. The petitioner has challenged the
impugned orders dated 30.7.2004 and
9.8.2004 (Annexures 8 and 9 to the Writ
Petition).

3. We have perused the impugned
orders. These orders have only asked the
petitioner to produce certain documents.
In our opinion, these notices do not
amount to any adverse order against the
petitioner.
Hence
the
petition
is
premature. Moreover, if any adverse order
is passed against the petitioner, he has an
alternative remedy to approach the E.S.I.
Court under Section 75 of the E.S.I. Act.
In Special Director and another Vs.
Mohd. Ghulam Ghouse and another 2004
A.I.R. S.C.W. 416, the Supreme Court
deprecated the practice of the High Court
of entertaining writ petitions against a
show cause notice.

4. The Writ Petition is premature
and is dismissed at this stage.
Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.08.2004

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Writ Petition No.5728 of 1996

Rama Shanker Shukla
...Petitioner
Versus
Nagar Mahapalika Allahabad and another

 ...Respondents

Counsel for the Petitioner:
Sri Vikas Budhwar
Sri R.M. Saggi

Counsel for the Respondents:
Sri Rakesh Dwivedi
Sri S.D. Kautilya
Sri A.K. Shukla

Indian Penal Code, 1890-Ss. 493, 24, 25-
Service
Law-Termination
orderPetitioners a Tax Collector, had clear
intention
to
misappropriate-huge
amount collected by him as tax-retention
of amount for considerable period and
utilization of money for personal gainDeposit of amount only after suspension,
does not absolve petitioner from his guilt
misappropriating
the
amount-No
explanation for not depositing amount.
Thus
intention
to
misappropriate
amount-established charges-No ground
for interfere with punishment awarded
by disciplinary Authority.

Held: Para 6 and 14

In the present case, the petitioner
collected a sum of Rs.1,48,000.00 and
odd and did not deposit the money in the
Treasury for a long time. The petitioner
retained and used this amount for his
own personal gain. Subsequently, on the
basis of a preliminary enquiry, it was
found that the petitioner had retained a
large sum of money on the basis of
which the petitioner was suspended and
http://www.allahabadhighcourt.nic.in
2 All] Rama Shanker Shukla V. Nagar Mahapalika, Allahabad and another
569
it
was
only,
thereafter,
that
the
petitioner had deposited the amount. If
the respondents had not found out about
the shortfall, in that event, the petitioner
would have retained the amount. The
deposit of the amount was made after a
considerable period of time and no
explanation had been given by the
petitioner as to why he could not deposit
the money earlier. Therefore, in my view
the petitioner was guilty of dishonest
misappropriation.

As I have already held, the petitioner
had a clear intention to misappropriate
the amount, and the petitioner had
retained the amount for a considerable
period of time and utilized the money for
his own gain benefit. The fact that the
petitioner deposited the amount only
after he was suspended does not absolve
the petitioner of his initial guilt of
misappropriating the amount. Further,
no explanation had been given by the
petitioner as to why he could not deposit
the money earlier. In the absence of any
explanation, it is clear that the intention
of the petitioner was to misappropriate
the amount. Thus such a person who was
posted as a Tax Collector, which is a post
of trust, could not retained in service.
Case law discussed:
1997 ALJ 1310
2000 (18) LCD 1040
AIR 1959 SC 1390
2001 (2) UPLBEC 1475
2000 (1) UPLBEC 541

(Delivered by Hon'ble Tarun Agarwala, J.)

1. The petitioner was initially
appointed as a daily wager in the Nagar
Mahapalika, Allahabad in the year 1984.
His services were regularized in the year
1992 and on 5.6.1992, the petitioner was
appointed as a Tax Collector. It transpires
that on the basis of a preliminary enquiry
it was found that large sums of money
collected by the petitioner was not
deposited in the Treasury. Accordingly,
the
petitioner
was
placed
under
suspension vide an order dated 22.2.1994.
A charge sheet dated 13.2.1995 was
issued in which it was stated that large
sums of money collected by the petitioner
was not deposited in the Treasury, which
he had misappropriated for his own use
and therefore, caused a loss to the
department. The charge sheet further
stated that when this fact was brought to
the notice of the petitioner, the said
amount was deposited subsequently but
there was a short fall of Rs.100.60. The
petitioner, vide his reply, admitted that
whatever amount was found short was
deposited by him and that he was also
willing to deposit the short fall of
Rs.100.60. The enquiry officer after
holding the enquiry, submitted his report
holding that the charge No.1 was serious
in nature and that the petitioner had
collected a sum of Rs.1,48,000.00 and
odd and that he deliberately did not
deposit this amount in the Treasury and
deposited the amount only after he was
suspended. The enquiry officer found that
the petitioner was guilty of misusing and
misappropriating the funds of the Nagar
Mahapalika. On the basis of the enquiry
report, a show cause notice was issued to
the petitioner and subsequently by an
order dated 19.1.1996,the services of the
petitioner was terminated. Against the
order of termination, the petitioner has
filed the present writ petition.

2. Heard Sri Vikas Budhwar, the
learned counsel for the petitioner and Sri
S.D.Kautilya, the learned counsel for the
respondents.

3. A preliminary objection was
raised by the learned counsel for the
respondent Sri S.D.Kautilya that against
the order of termination, the petitioner
had a right of an appeal before the
Commissioner and, therefore, the writ
petition was not maintainable and should
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
570
be dismissed on the ground of alternative
remedy. This writ petition was entertained
in the year 1996 and after eight years, I
am not inclined to dismiss the writ
petition on the ground of alternative
remedy and, therefore, I propose to deal
with
the
matter
on
merits.
The
preliminary objection raised by the
learned counsel for the respondents is
accordingly rejected.

4. The learned counsel for the
petitioner contended that the charges
mentioned in the charge sheet dated
13.2.1995
did
not
constitute
any
misconduct and, therefore, the petitioner's
services could not be terminated. The
learned
counsel
for
the
petitioner
submitted that once the amount of
Rs.1,48,000.00 and odd was deposited,
the question of misappropriation does not
arise nor does it constitute a misconduct.
So far as the second charge is concerned,
the learned counsel for the petitioner
stated that there could have been a
bonafide error in not depositing a sum of
Rs. 100.60 and that the petitioner was
willing to deposit the short fall. In any
case, the petitioner could not be made
guilty of misappropriating this small
amount of Rs.100.60. The petitioner
contended
that
since
a
sum
of
Rs.1,48,000.00
and
odd
had
been
deposited, no loss was caused to the
respondents. In support of his submission,
the learned counsel for the petitioner
relied upon the decisions of this court in
Chain Sukh Vs. State of U.P. reported
in 1997 A.L.J. Page 1310 and Ram
Bharat
Tewari
Vs.
Town
Area
Committee 2000(18) L.C.D. 1040.

5. In my view, I am not at all
impressed by the submissions made by
the learned counsel for the petitioner and
the judgment cited are distinguishable. In
Chain Sukh case (supra), charges levelled
against the incumbent was dereliction of
duty and in that light, the court held that
since there was no charge of dishonest
misappropriation, the mere delay in
depositing the money could not constitute
dishonest
misappropriation.
In
Ram
Bharat Tewari case (supra), the court held
that the retention of Rs. 3,000.00 by the
incumbent
did
not
amount
to
misappropriation,
inasmuch
as
the
incumbent had stated from the very
beginning that he had drawn the amount
to purchase National Savings Certificate
for the staff members, which certificates
were not available in the post office and
in that connection he had retained the
amount. The court also found that the
retention of the amount was also recorded
in the cash book, hence the court came to
a conclusion that the delay in depositing
the
money
did
not
constitute
misappropriation.
In
my
view,
the
aforesaid decisions are distinguishable
and do not apply to the present facts and
circumstances of this case.

6. In the present case, the petitioner
collected a sum of Rs.1,48,000.00 and
odd and did not deposit the money in the
Treasury for a long time. The petitioner
retained and used this amount for his own
personal gain. Subsequently, on the basis
of a preliminary enquiry, it was found that
the petitioner had retained a large sum of
money on the basis of which the
petitioner was suspended and it was only,
thereafter,
that
the
petitioner
had
deposited the amount. If the respondents
had not found out about the shortfall, in
that event, the petitioner would have
retained the amount. The deposit of the
amount was made after a considerable
period of time and no explanation had
been given by the petitioner as to why he
could not deposit the money earlier.
Therefore, in my view the petitioner was
guilty of dishonest misappropriation.
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2 All] Rama Shanker Shukla V. Nagar Mahapalika, Allahabad and another
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7. Section 403 of the Indian Penal
Code defines dishonest misappropriation
of the property as under.

"403 Dishonest misappropriation of
property:-
Whoever dishonestly misappropriates or
converts to his own use any moveable
property,
shall
be
punished
with
imprisonment of either description for a
term which may extend to two years, or
with fine, or with both.

Explanation
1-A
dishonest
misappropriation for a time only is a
misappropriation within the meaning of
this Section."

Section 24 IPC defines "dishonestly" as

"Dishonestly"-Whoever
does
anything with the intention of causing
wrongful gain to one person or wrongful
loss to another person, is said to do that
thing " dishonestly".

Section 25 IPC defines fraudulently as

"Fraudulently"-. A person is said to
do a thing fraudulently if he does that
thing with intent to defraud but not
otherwise."

In Krishan Kumar v/s Union of
India, AIR 1959 SC 1390, the Supreme
Court held that "wrongful gain" includes
wrongful retention.

8. From the record, it is clear that
the misappropriation of the money was
for a certain period of time, which
constitutes
dishonest
misappropriation
under Section 403 of the Indian Penal
Code. The intention of the petitioner was
loud and clear that he had a dishonest
intention to misappropriate the amount
and defraud the respondents. The mere
fact that he deposited the entire amount
after he was suspended would not absolve
him of his dishonest intentions to
misappropriate the amount.

9. The Maxim "Actus non facit reum
nisi mens sit rea" is fully applicable and
clearly applies in the present facts and
circumstances of the case. The action of
the petitioner is irrelevant, and it is the
guilty intention which is relevant. From
the record, it is clear that the intention of
the petitioner was to misappropriate the
money. The deposit of the amount at a
later stage would not absolve the
petitioner
of
the
charge
of
misappropriation. The charges clearly
constituted a misconduct. Thus, the
submissions made by the learned counsel
for the petitioner are wholly erroneous
and the judgment cited by the petitioner
are distinguishable.

10. The learned counsel for the
petitioner
next
submitted
that
the
documents were not supplied to him
which were referred in the charge sheet
and,
therefore,
the
petitioner
was
prejudiced by the non supply of the
relevant documents and on this basis, the
enquiry proceedings are vitiated on
account of violation of the principles of
natural justice. In this regard, the learned
counsel for the petitioner invited the
attention of the court to the letter dated
28.2.1995 which contemplates demanding
of certain documents by the petitioner.

11. In my view, the submission of
the learned counsel of the petitioner is
totally devoid of any merit. The letter
dated 28.2.1995 was a reply of the
petitioner to the charge sheet and was not
a letter demanding documents from the
enquiry officer. The reply of the petitioner
no doubt states that the list of witnesses
had not yet been supplied to him, but the
said statement was only made in a casual
manner. In any case, the respondents have
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
572
categorically
stated
in
the
counter
affidavit that whatever documents that
was demanded by the petitioner was
supplied to him and that he was also
permitted to inspect various documents.
Thus, no prejudice has been caused to the
petitioner.

12. The learned counsel for the
petitioner next submitted that no oral
enquiry was conducted by the enquiry
officer and that an oral enquiry was a
must especially when a major punishment
is awarded. Since no oral enquiry was
conducted, the order of termination was
illegal and was liable to be quashed. In
support of his contention, the learned
counsel has relied upon the decision of a
Division Bench of this court in Subhash
Chandra Sharma Vs. U.P. Co-operative
Spinning Mills, 2001(2) U.P.L.B.E.C.
1475, in which it was held that in cases
where a major punishment was proposed
to be imposed, an oral enquiry was a
must, even though the employee may
have requested for it or not. The learned
counsel also relied upon another decision
in Subhash Chandra Sharma Vs.
Managing
Director,
2000
(1),
U.P.L.B.E.C. 541, in which it was held-

"In the present case it appears that no
regular enquiry was held at all. All that
was done that after receipt of the
petitioner's reply to the charge sheet he
was given a show- cause notice and
thereafter the dismissal order was passed.
In our opinion this was not the correct
legal procedure and there was violation of
the rules of natural justice. Since no date
for enquiry was fixed nor any enquiry
held in which evidence was led in our
opinion the impugned order is clearly
violative of natural justice."

13. There is no quarrel with the
aforesaid submission, but the judgment
cited are not applicable in the present
facts and circumstances of the case and
are also distinguishable. In the cases cited
by the petitioner, the incumbent denied
the charges levelled against him and,
therefore, it was incumbent for the
employers to hold an oral enquiry and
examine the witnesses, etc. Since no oral
enquiry was conducted, the court held that
there was a violation of the principles of
natural justice. However, in the present
case, the facts are different. The petitioner
admitted the charges, and had justified his
innocence on the ground that since he had
already deposited the money, the charge
of misappropriation disappears. Since the
charges were admitted by the petitioner,
the question of holding any further oral
enquiry by the enquiry officer did not
arise. The enquiry officer was only
required to submit the enquiry report on
the basis of the reply given by the
petitioner. In my view, there is no
infirmity in the enquiry proceedings
conducted in the present case nor is the
same violative of the principles of natural
justice. The petitioner in his letter dated
27.3.1995 clearly admitted the charges
given in the charge sheet. Consequently,
no oral enquiry was required. The
submission made by the learned counsel
is devoid of any merit.

14. The last submission made by the
learned counsel for the petitioner was that
the punishment of dismissal was wholly
excessive and disproportionate to the
misconduct.
The
learned
counsel
submitted that since the amount had
already been deposited and no loss was
sustained by the respondents, therefore, in
the absence of any no intention to defraud
or
misappropriate
the
amount,
the
petitioner should have been given a lesser
punishment. As I have already held, the
petitioner had a clear intention to
misappropriate the amount, and the
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2 All] Pt. Chet Ram Sharma V. Ist A.D.J., Meerut and others
573
petitioner had retained the amount for a
considerable period of time and utilized
the money for his own gain benefit. The
fact that the petitioner deposited the
amount only after he was suspended does
not absolve the petitioner of his initial
guilt of misappropriating the amount.
Further, no explanation had been given by
the petitioner as to why he could not
deposit the money earlier. In the absence
of any explanation, it is clear that the
intention
of the
petitioner was
to
misappropriate the amount. Thus such a
person who was posted as a Tax
Collector, which is a post of trust, could
not retained in service.

15. In my view the punishment
awarded commensurated with the gravity
of the charges and which was squarely
been proved against the petitioner and I
see no grounds to interfere with the
punishment awarded by the Disciplinary
Authority.

16. For the aforesaid reasons, I find
no merit in the writ petition and is
accordingly dismissed. However, in the
circumstances of the case, there shall be
no order as to cost.
Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.08.2004

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 17062 of 1985

Pt. Chet Ram Sharma

...Petitioner
Versus
Ist Addl. District Judge, Meerut and
others

 ...Respondents

Counsel for the Petitioner:
Sri N.C. Rajvanshi
Sri M.C. Rajvanshi
Sri M.C. Mishra
Sri M.K. Rajvanshi

Counsel for the Opposite Parties:
Sri Ravi Kant
Sri Pankaj Mittal
Sri Shubham Agarwal
S.C.

(A) U.P. Act No. 13 of 1972-S.10,22 and
34-Review-Power of Appellant Court-in
absence of Specific Provision-appellate
court can not exercise the power of
Review.

Held: Para 15

Thus, from a perusal of Sections 10, 22,
and 34 of the Act, read with Rule 22 of
the Rules, coupled with the decisions
cited aforesaid it is clear that no specific
provision has been provided under the
Act to review a judgment given by the
appellate court.

(B) Code Civil Procedure- 1908-S.151-
Judgment dictated on the points-neither
raised in memo of appeal, nor arguedwhether can be interfered by the said
court, by exercising inherent Powerheld- 'yes'-for the omission of court-the
litigant should not be put to suffer.

Held: Para 27

Thus, in my view, in the present facts
and circumstances of the case the
application for recall of the judgment
passed by the appellate court could be
made under Section 151, C.P.C. and the
same was maintainable. In exceptional
circumstances and to advance the cause
of justice, the appellate court had the
inherent power under Section 151, C.P.C.
to recall its judgment.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. The petitioner is a tenant and has
filed the writ petition challenging the