1. The petitioner has filed this writ petition challenging order dated 01/11/2014 (Annexure- P/1) and order dated 19/04/2007 (Annexure- P/2), both passed by respondent no.4, whereby direction to recover Rs.1,15,000/- from the petitioner has been passed on account of loss suffered by the Gwalior Sahakari Dugdh Sangh Maryadit. He has prayed for a direction to the respondents to refund the aforesaid amount together with interest.

2. The facts necessary for decision of this case are that the petitioner was appointed as Lower Division Clerk in Gwalior Sahakari Dugdh Sangh Maryadit (hereinafter referred to as "Sangh") in 1979. At the relevant time, he was posted as Junior Assistant at Banmore Store of the Sangh. During physical inspection on 24/01/2007, it was found that as many as six CPUs and five colour monitors are missing from the store amounting to Rs.2,30,000/-. Since the petitioner was store in- charge, a show-cause notice was issued to him on 01/03/2007 alleging that because of his negligence the aforesaid items are missing from store and the Sangh has suffered loss of Rs.2,30,000/- which is required to be recovered from him. He was directed to submit his explanation. The petitioner gave his reply on 09/03/2007 (Annexure- P/4) disputing his responsibility in the matter. The respondent no.4 thereafter passed order dated 19/04/2007 (Annexure P/2) thereby directing recovery of Rs.1,15,000/- from the petitioner being 50% of the total loss caused to the Sangh. Remaining 50% was directed to be recovered from the security agency M/s Magnum International as it was also equally found responsible. It appears that the aforesaid amount was recovered from the petitioner by attaching his salary.

3. Even though the order directing recovery of the amount was already passed, a charge sheet on the same allegation was issued to the petitioner on 18/09/2007. The petitioner gave reply to the charge sheet also which is stated to be found unsatisfactory and, therefore, the enquiry was conducted. From the records, it is gathered that the Enquiry Officer submitted his report on 10/03/2014 wherein the allegation made against the petitioner was found partly proved. The respondent no.4 thereafter forwarded the copy of enquiry report to the petitioner vide letter dated 03/06/2014 asking him to give his explanation to the findings recorded by the Enquiry Officer. The petitioner gave his reply on 17/06/2014 again denying his responsibility. He also requested for personal hearing which was given to him on 05/09/2014. Thereafter, the impugned order dated 01/11/2014 (Annexure P/1) came to be passed by respondent no.4 whereby the petitioner is held liable for refunding the amount of Rs.1,15,000/- being 50% of total loss caused to the Sangh. From this order, it is also gathered that since the amount was already recovered from the petitioner's salary, no amount was further required to be recovered.

4. Being aggrieved, the petitioner challenged the aforesaid punishment order by filing an appeal before the Commissioner, Gwalior Division, Gwalior which also stood dismissed. There is a serious dispute between the parties about the date of dismissal of the appeal. As per order dated 03/09/2020 (Annexure-P/12), the appeal was already dismissed vide order dated 16/01/2015, and as per the petitioner's submission, the said order was never received by him. However, the fact remains that the petitioner's appeal stood dismissed on the ground of maintainability. The petitioner has, therefore, filed the present appeal challenging the orders passed by respondent no.4.

5. Challenging the impugned orders, learned counsel for the petitioner argued that the direction to recover amount from the petitioner is arbitrary and illegal inasmuch as the petitioner was not responsible for the loss caused to the Sangh. It is his submission that the Sangh has entered into an agreement with M/s Magnum International who is responsible for safety and security of the property of the Sangh. Thus, the entire amount is required to be refunded by the said security agency. The learned counsel also pointed out that keys of the store were with the petitioner as also with Shri P.P. Trivedi and Narayan Singh and, therefore, it cannot be said that only the petitioner is responsible for the theft committed. It is his submission that the matter was reported to the police also and after investigation, the petitioner and Shri P.P. Trivedi were prosecuted for the offence punishable under Sections 381 & 408 of IPC. They have been acquitted in the said criminal case vide judgment dated 27/01/2014 (Annexure- P/5). He, thus, submitted that in view of the findings recorded by the Court, the respondents could not have recorded the contrary finding. The learned counsel also submitted that the petitioner has rendered long unblemished service with the Sangh which should have been taken into account while passing the impugned order. He, thus, prayed for setting aside of the impugned orders and for refund of the amount with interest.

6. On the other hand, learned counsel appearing for respondent no.2 & 4 supported the impugned action of the respondents. He submitted that initially, based upon the reply submitted by the petitioner to show-cause notice, the Chief Executive Officer passed order dated 19/04/2007 (Annexure-P/2). Since his explanation was not found satisfactory, the amount of Rs.1,15,000/- was directed to be recovered from his salary being 50% of the total loss. He further submitted that the order dated 19/04/2007, was only an administrative order and in order to give further opportunity of hearing to the petitioner, the charge-sheet was issued to him subsequently and after conducting departmental enquiry, the impugned order dated 01/11/2014 has been passed. The learned counsel submitted that the petitioner was admittedly store In-charge and, therefore, it was his responsibility to ensure the safety of the property of the Sangh. He also pointed out that property went missing not because of any theft but was taken out from the store by opening the lock. It is evident because there was no sign of breaking of the lock or the windows or the wall. Thus, it is only the petitioner who could have permitted the property to be taken out of the store. The learned counsel also raised an objection regarding delay and laches in filing the present writ petition inasmuch as the impugned orders were passed in 2007 and 2014 while the petition has been filed in the year 2021. He thus, prayed for dismissal of this petition.

7. Considered the arguments and perused the record.

8. There is nothing on record to controvert the finding that the property was taken out from the store after opening the lock as there was no sign of breaking of the lock or window or the wall. In other words, the property was taken out of the store with the consent of the person who was having access to the store. The finding that the property was taken out after opening the lock is, therefore, found to be just and proper. The issue for consideration is as to whether the petitioner is responsible for the said loss caused to the Sangh?

9. In reply, dated 09/03/2007, to the show-cause notice dated 01/03/2007, the petitioner has taken a specific stand that the store is divided into three parts. One is general store the control of which was with Shri P.P. Trivedi; second is the DCS store which is under the control of Shri Narayan Singh and third is the engineering store which is with the petitioner. It is stated in the reply that the keys of the respective parts remain with Shri P.P. Trivedi, Shri Narayan Singh and the petitioner during the day time and in the evening all the three keys were kept in a drawer in engineering store and in the morning the respective In-charge collects the keys. He has also stated that the store office has a lock with three keys which remained with the petitioner, P.P. Trivedi and store In-charge. It is further stated by him in the reply that the items, which were found missing, were kept in general store and the control of general store was with Shri P.P. Trivedi. The petitioner has, thus, taken a specific stand that he is not responsible for the loss and he is only made scapegoat in order to protect Shri P.P. Trivedi.

10. From reading both the impugned orders i.e. order dated 19/04/2007 & 01/11/2014, it is gathered that aforesaid specific stand taken by the petitioner is not dealt with by the respondent no.4. Thus, the finding recorded in the impugned order that only the petitioner is responsible for missing of the items, cannot be said to be just and reasonable. The respondent no.4 was required to deal with the specific stand taken by the petitioner which he failed to do.

11. After giving show-cause notice and taking reply of the petitioner and respondent no.4 passed the order dated 9/04/2007 (Annexure P/2) holding him responsible for the loss caused to the Sangh and for refund of half of the total loss. The proceedings thus stood concluded with the passing of this order. It is not explained by the respondents as to in what circumstances a fresh proceeding by serving charge-sheet was initiated against the petitioner. Once the order is passed by the Chief Executive Officer, the proceedings stood concluded and there was no occasion with the Sangh to have re-initiated the proceedings by issuing charge-sheet. Pertinently, order dated 19/04/2007 is still intact and has not been withdrawn by the respondents so far. In fact, pursuant to this order dated 19/04/2007, the amount was already recovered from the petitioner's salary. Even though the amount is recovered only once in compliance with the order, dated 19/04/2007, however, conducting enquiry again after passing of the said order, remained unexplained.

12. The respondents have not brought on record the relevant record of the departmental enquiry including charge-sheet, reply to charge- sheet, enquiry report etc. Thus, in absence of the said record, the finding recorded against the petitioner by the Enquiry Officer cannot be tested. It is worth noting here that in his order dated 01/11/2014, respondent no.4 has not discussed the material collected during enquiry and has only stated that he agree with the findings recorded by the Enquiry Officer. Both the orders impugned in this petition are found to be lacking reasons to justify the action. Further, the material is also not brought on record to support their action. Thus, it is found that in both orders, respondent no.4 failed to deal with the specific stand taken by the petitioner in absence of which orders become vulnerable.

13. At this stage, objection raised by the learned counsel for the respondents regarding delay and laches on the part of petitioner needs to be examined. Initially the order was passed by respondent no.4 on 19/04/2007. Soon thereafter charge-sheet was issued to the petitioner for the same allegations on 18/09/2007 which continued up to 01/11/2014. It is also not in dispute that the petitioner challenged the order dated 01/11/2014 in the appeal filed on 26/02/2015 before the Commissioner, Gwalior Division, Gwalior. Thus, it cannot be said that there was total inaction on the part of the petitioner till this day.

14. It appears that the petitioner submitted an application on 22/07/2020 before the Commissioner inquiring about the status of his appeal. In response, he was informed that his appeal was already decided on 16/01/2015. It is case of the petitioner that this information was never supplied to the petitioner. After conclusion of the arguments, on the next day, the respondents' counsel produced before this Court a copy of order dated 15/01/2015 passed by Commissioner. A perusal of this document also does not show that this order was supplied to the petitioner as it does not bear his acknowledgment. Even otherwise, the appeal has been dismissed as not maintainable and not on merits.

15. The petitioner has stated in paragraph 5.7 of the petition that challenging order dated 19/04/2007, he filed W.P. No.2110/2007 which was disposed off by this Court on 18/05/2007 giving liberty to the petitioner to challenge the order by filing an appeal. The petitioner has stated that his appeal has been dismissed by the Commissioner vide order dated 16/01/2015. This order is stated to be marked as Annexure-P/9. However, when the document marked as Annexure- P/9 is seen, this is found to be the copy of memo of appeal and not order passed on appeal. Thus, it appears that after disposal of the petition on 18/05/2007, the petitioner did not file any appeal. The appeal was filed only on 25/02/2015 after passing of order dated 01/11/2014.

16. In view of the aforesaid, even though the petitioner is found contesting the matter before the authorities, it is also gathered that he did not take any action challenging order dated 19/04/2007.

17. In view of discussion made above, the impugned orders dated 19/04/2007 (Annexure-P/2) and 01/11/2014 (Annexure- P/1) are found to be unsustainable in law. Accordingly, the same are set-aside. The respondents are directed to refund the amount of Rs.1,13,000/- to the petitioner together with interest at the rate of 6% per annum from the date of filing of this petition i.e. 28/07/2021 till actual payment. On account of delay on the part of the petitioner in challenging the order dated 19/04/2007, he is held not entitled to interest on the amount till the date of filing of the petition.

18. With the aforesaid, this writ petition is allowed and disposed of in above terms.